                                    NO. 07-11-0100-CR
                                    NO. 07-11-0101-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL B

                                  FEBRUARY 10, 2012
                             ____________________________


                                  THE STATE OF TEXAS,

                                                          Appellant

                                             v.


                           ALEJANDRO GUADALUPE GARCIA,

                                                     Appellee
                             ___________________________

               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

      NOS. 52,533-E & 52,534-E;HONORABLE DOUGLAS WOODBURN,PRESIDING
                           __________________________

                                       OPINION
                              __________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      The State appeals the dismissal of the indictments against Alejandro Guadalupe

Garcia (appellee). The indictments were so dismissed by the trial court because it

concluded that the State failed to try him within the 180-day period designated in the

Interstate Agreement on Detainers Act (IADA). TEX. CODE CRIM. PROC. ANN. art. 51.14,
Art. III (West 2006). The State argues before us that it so complied with that deadline

and that the trial court erred in holding otherwise. We reverse.

       Background

       The State obtained two indictments against appellee in the year 2006. Through

both, he was accused of possessing controlled substances. Before those accusations

came to trial, the United States tried and convicted him, and as a result of that

conviction, appellee was imprisoned in California. While there, he thrice requested that

he be tried for the crimes described in the aforementioned indictments. Two of those

efforts were memorialized in letters sent in April of 2008 and June of 2010 to either or

both the district or county clerk for Potter County or the Potter County district attorney.

The third missive was given the warden of the federal prison in which he was

incarcerated; however, notice of that request was not received by the Potter County

district attorney until August 13, 2010. Upon receiving the latter, the district attorney

caused appellee to be transferred from California to Texas for prosecution.

       Trial was scheduled for February 7, 2011. When it convened, appellee moved to

dismiss the indictments because more than 180 days had passed since he had sent the

June 2010 letter seeking a final disposition. The trial court agreed with appellee and

dismissed the indictments.

       Authority and its Application

       The IADA outlines the procedures used by one state to gain temporary custody

over a defendant imprisoned in another state. State v. Votta, 299 S.W.3d 130, 134-35

(Tex. Crim. App. 2009); Fisher v. State, No. 07-10-0489-CR, 2011 Tex. App. LEXIS

8286, at *3 (Tex. App.–Amarillo October 19, 2011, no pet. h.). And, there are two ways



                                                2
in which the transfer of such custody may be initiated. It may be done via the request of

the accused himself or of the “appropriate officer” for the jurisdiction wherein the untried

indictment or complaint pends. TEX. CODE CRIM. PROC. ANN. art. 51.14, Arts. III(a), IV(a)

(West 2006); Fisher v. State, supra. When the “appropriate officer” solicits the transfer,

trial “shall be commenced within 120 days of the arrival of the prisoner in the receiving

state . . . .” Id. Art. IV(c); Fisher v. State, supra. However, when the prisoner solicits the

transfer, statute mandates that he "shall be brought to trial within 180 days" of his

request. Id. Art. III(a); Fisher v. State, supra. At issue here is the question of whether

appellee was tried within the 180-day period, and the burden to show he was not lay

with him. Lindley v. State, 33 S.W.3d 926, 930 (Tex. App.–Amarillo 2000, no pet.).

       It is clear that the 180-day period begins after the prosecuting officer and the

appropriate court actually receive the written request for a final disposition. State v.

Votta, 299 S.W.3d at 134-35; Lindley v. State, 33 S.W.3d at 929-30. It further appears

that at least one other item must be received to trigger the deadline; it consists of a

certificate from the appropriate officer having custody of the prisoner.

       That is, Article III, section (a) of the IADA states that the prisoner’s request must

be “accompanied by a certificate of the appropriate official having custody of the

prisoner stating the term of commitment . . . the time already served, the time remaining

. . . on the sentence, the amount of good time earned, the time of parole eligibility. . .

and any decision of the state parole agency relating to the prisoner.” TEX. CODE CRIM.

PROC. ANN. art. 51.14, Art. III(a) (West 2006). And, should that information not be

forwarded with the request for final disposition, the 180 day timeline remains dormant.

We learn this from the opinion in Lara v. State, 909 S.W.2d 615 (Tex. App.–Fort Worth



                                                 3
1995, pet. ref’d).      There, the requisite certificate did not accompany the prisoner’s

request. Nor was the information normally placed within the certificate included in the

prisoner’s request itself. This omission led the reviewing court in Lara to hold that the

180-day deadline did not begin to run upon receipt of only the prisoner’s written request

for disposition. Id. at 618; accord, Lara v. Johnson, 141 F.3d 239, 243 (5th Cir. 1998)

(holding the same).

        Applying Lara v. State to the situation at bar, we too note that while appellee

personally tried several times to request a final disposition, his letters to Potter County

omitted the information specified in art. 51.14, Art. III(a) and are normally sent by the

body holding the prisoner.           Furthermore, the missing information was not actually

received by the district attorney until August 13, 2010. So, the requisite deadline did not

begin until that date, and trying appellee on February 7, 2011, was timely.1

        Accordingly, we reverse the order dismissing the indictments and remand for

further proceedings.



                                                                 Brian Quinn
                                                                 Chief Justice

Publish.




        1
           This assumes, of course, that the data was also provided the court as mandated by the same
statute. TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. III(b) (West 2006). Sending it to either the county or
district clerk is not necessarily tantamount to notifying the court. In re Fox, 141 S.W.3d 795, 797 (Tex.
App.–Amarillo 2004, orig. proceeding) (holding that notifying the clerk of pending legal matters does not
place the trial court on notice of them for purposes of mandamus proceedings). And, nothing of record
shows whether the trial judge actually received notice of both the request for final disposition and the
other necessary information until it heard appellee’s motions to dismiss.

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