                                   NO. 07-01-00232-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   APRIL 26, 2002
                          ______________________________

                                 FIDENCIO S. VASQUEZ,

                                                         Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2001-435,732; HON. JIM BOB DARNELL, PRESIDING
                       _______________________________

Before BOYD, C.J., QUINN, and REAVIS, J.J.

       Fidencio S. Vasquez (appellant) appeals his conviction for aggravated sexual

assault. Through six issues, he contends that the evidence was insufficient to support the

conviction and that the trial court erred in: (1) allowing the introduction of extraneous

offenses; (2) allowing the introduction into evidence of a videotape containing his

confession; and (3) failing to dismiss the charge against him after the State failed to comply

with the Interstate Agreement on Detainers Act. We overrule the issues and affirm the

judgment of the trial court.
                                      Background

      A jury found appellant, Fidencio Vasquez, guilty of aggravated sexual assault. The

evidence at trial indicated that complainant, appellant’s adopted daughter Amy, was

sexually assaulted by him repeatedly over the course of nine years. Appellant married

Amy’s mother, Debbie, when Amy was four years old. Six years later appellant adopted

Amy and her two sisters, Heidi and Sarah. Two other children were subsequently born of

the marriage, Juan and Anna.

      The first such sexual contact between the appellant and Amy was alleged to have

occurred when Amy was ten years old while the family was living in North Carolina. The

sexual contact between appellant and Amy continued throughout the following nine years.

During that time the family moved constantly. From North Carolina, the family moved to

Georgia, Tennessee, Indiana, and then to Texas. During a majority of this time, appellant

made sexual contact with Amy about two times per week. This sexual contact consisted

of appellant rubbing his penis against Amy’s vagina, having sexual intercourse with her,

and having her perform oral sex on him. Appellant left Texas for Colorado because of

employment opportunities. A couple of weeks after his departure, Debbie and Amy drove

to Colorado under the auspices of delivering some tools to appellant. However, after

arriving in Colorado, Amy discovered that she was to stay there with appellant. Thereafter,

appellant continued to have sexual contact with her.

       While in Colorado, Amy was successful in contacting her boyfriend Jonathan Ayala,

who was living in Texas, and informed him of her circumstances. He contacted the

Lubbock Police Department and explained Amy’s situation. He was directed to Detective

Steen (Steen) who instructed Jonathan to have Amy contact him. While at a mall with

                                            2
Juan, Amy called Jonathan, and he gave her Steen’s phone number. Upon calling Steen,

Amy went to the Lakewood Police Department where she gave the police a statement

regarding the assaults. Thereafter, appellant went to the police station, underwent

interrogation, and ultimately confessed to engaging in sexual contact with his daughter.

The State of Colorado prosecuted and convicted appellant for criminal incest.

Subsequently, the State of Texas indicted and eventually convicted appellant of

aggravated sexual assault.

                          Issue 1: Sufficiency of the Evidence

       In his first issue, appellant challenges the legal and factual sufficiency of the

evidence. Appellant claims the evidence was insufficient to prove that he threatened Amy

with force or violence, or that he used any words or acts to place her in fear of death,

serious bodily injury, or kidnaping during the time he was in Lubbock County. We overrule

the issue.

       Standard of Review

       The standards of review applicable to questions of legal and factual sufficiency are

well-settled and need no explanation. We find it adequate to merely cite the parties to King

v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) and Clewis v. State, 922 S.W.2d 126

(Tex. Crim. App. 1996).

       Application of Standard

       To secure a conviction for aggravated sexual assault, the State must prove beyond

reasonable doubt that the accused 1) intentionally or knowingly caused the sexual organ

of another person, without that person’s consent, to contact or penetrate the mouth, anus,



                                             3
or sexual organ of another including the actor and 2) by acts or words places the victim in

fear that death, serious bodily injury, or kidnaping will be imminently inflicted on any

person. See TEX . PEN . CODE ANN . §22.021(a)(1)(A)(iii) and (a)(2)(A)(ii) (Vernon Supp.

2001).

         Appellant argues that the “on or about” date mentioned in the indictment is crucial

in determining the sufficiency of the evidence. Allegedly, since the indictment was

presented on February 28, 2001, “the State could only rely on events which occurred after

February 28, 1996, five years before the date the indictment was presented.” Appellant

had been in Colorado just over a month before being arrested there on November 2, 1996.

Therefore, appellant claims, “the State could only rely on events that occurred between

February 28, 1996, and October 1996, when appellant left for Colorado.”

         Furthermore, appellant argues that “the evidence adduced at trial clearly established

that no [sexual contact] occurred in Lubbock County within the proper limitations period by

threatening Amy Vasquez with force or violence, [sic] nor did he use any words or acts to

place her in fear that death, serious bodily injury, or kidnaping would be imminently inflicted

on her.” He argues not that no such contact occurred. Rather, he claims the evidence was

legally and factually insufficient to support the finding that he used force or threatened Amy

in compelling her to submit to his advances.

         In the context of an aggravated sexual assault, the victim's state of fear is normally

established through his or her own testimony. Lewis v. State, 984 S.W.2d 732, 734 (Tex.

App.–Fort Worth 1998, pet. ref’d). The defendant's conduct, i.e. acts, words, or deeds, is

then examined to determine whether it was the producing cause of such fear and whether

the subjective state of fear was reasonable in light of such conduct. See id. We find the

                                               4
rationale in Graves v. State, 994 S.W.2d 238 (Tex. App.–Corpus Christi 1999, pet. ref’d,

untimely filed) instructive. The facts in Graves are similar to those at bar. In Graves, the

appellant asserted that evidence was insufficient to sustain his sexual assault conviction

because the victim was twenty years old at the time of the alleged offense and consented

to sexual contact with him. Id. at 243. At trial, the victim testified that she only consented

because Graves had struck her when she previously had refused his advances. The court

found that the appellant’s demands carried an implicit threat that if she did not submit, she

would be beaten, as she had been on at least one prior occasion. The court reasoned

that:

              [t]o hold otherwise, would be to require sexual assault victims
              who previously have been beaten for refusing the sexual
              advances of their attacker to again be physically forced to
              submit to the whims of the sexual predator or, at the very least,
              compel them to make an express threat of force before such
              person could be held accountable for their actions. This
              indeed would be a travesty of justice.

Id. at 244.

        As to the alleged want of evidence regarding a threat of death or seriously bodily

injury, we find of record evidence that, prior to moving to Lubbock County, appellant 1) had

been sexually assaulting Amy since she was ten, 2) repeatedly told Amy that if she told

anyone that “he would hurt [her] mom,” 3) told Amy that if he found out she told someone

that “things would be worse,” and 4) slapped Amy, pulled her hair, and threatened to throw

her from a car, took her to a motel, threatened to throw her up against the walls, made her

take her clothes off and have sex with him all because she had an “attitude problem” for

wanting to attend high school. So too do we have testimony from Amy illustrating that she



                                              5
continued to submit to the sexual contact with appellant because she 1) was afraid

appellant would hurt her, 2) was afraid appellant would hurt her mother, 3) was afraid

appellant would make things worse for her, and 4) believed appellant would carry out his

threats if she did not submit.

       Appellant acknowledges that the State introduced evidence of both sexual contact

and penetration, but argues that no evidence was presented that he threatened Amy with

force or violence, nor did he use words to place her in fear of death, serious bodily injury,

or kidnaping, “within the proper limitations period.” (Emphasis added). Despite appellant’s

argument, Amy testified that while living in Lubbock County that she submitted to the

sexual contact because appellant would tell her that “if she [told], [he’d] hurt [her] mom or

things will get worse.” The exact date of this statement is unclear. Yet, we cannot simply

ignore appellant’s extensive pattern of threats and sexual assaults on Amy which do not

fall within the statute of limitations. Appellant’s actions towards Amy prior to moving to

Lubbock County constitute a pattern of threats, physical abuse, and sexual assaults. The

evidence at trial established that the assaults began when Amy was ten and continued for

nine years. Appellant also repeatedly threatened Amy to dissuade her from telling anyone.

Like the circumstances in Graves, this pattern created an implicit threat that if Amy did not

submit then appellant would fulfill the threats he had made. And, from this, a jury could

rationally conclude beyond reasonable doubt that appellant committed aggravated sexual

assault. See TEX . PEN . CODE ANN . § 22.021 (stating the elements and punishment range

for aggravated sexual assault). Moreover, when tested against the entire record, the

finding is not manifestly unjust or clearly wrong. So, the verdict enjoys the support of both

legally and factually sufficient evidentiary support.

                                              6
                               Issue 2: Extraneous Offenses

         Appellant next argues that the trial court reversibly erred in allowing the State to

introduce extraneous acts during the guilt/innocence state of the trial. We overrule the

issue.

         Standard of Review

         In determining whether a trial court erred in admitting evidence, we apply the

standard of abused discretion. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000).

That is, unless the decision fell outside the zone of reasonable disagreement, given the law

and pertinent circumstances, we must uphold it. Jones v. State, 944 S.W.2d 642, 651

(Tex. Crim. App.1996), cert. denied, 522 U.S. 832, 139 L.Ed.2d 54, 118 S.Ct. 100 (1997).

Moreover, the law applicable to the admission of evidence like that at bar is well-settled.

Same is inadmissible to prove the character of a person to show that the person acted in

conformity therewith. TEX . R. EVID . 404(b). However, it is admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake. Wyatt v. State, 23 S.W.3d at 25. The admissibility of extraneous

offenses is determined by a two-part test. First, the trial court must determine whether the

extraneous offense is relevant to a material, contested issue in the case other than the

defendant's character. Montgomery v. State, 810 S.W.2d 372, 387-89 (Tex. Crim.

App.1990). Second, the relevancy value of the evidence must outweigh its inflammatory

or prejudicial potential. Id. at 388.




                                              7
        Application of Standard

        Appellant argues that the trial court erred in allowing into evidence allegations

regarding appellant’s “rape [of Amy] when [she] was ten and living in North Carolina; sexual

contact two or three times per week in Georgia; sexual contact two or three times per week

in Tennessee; taking [Amy] to a hotel, slapping her, threatening her, and having sex with

her while they lived in Indiana; taking her to a hotel in Lubbock; threatening her, and

engaging in sexual intercourse; and sexual intercourse including anal penetration while

living in Colorado.” He claims that since Amy was nineteen at the time of the indicted

offense, that all references to prior sexual contact between appellant and Amy were

inadmissible extraneous offenses.1

        We reiterate that Texas Rule of Evidence 404(b) states that evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person. But, it is

admissible to 1) establish some evidentiary fact, such as motive, opportunity, or

preparation, leading inferentially to an elemental fact or 2) rebut a defensive theory. Wyatt

v. State, 23 S.W.3d at 25. Furthermore, the Court of Criminal Appeals has held that “it has

long been the rule in this State that the jury is entitled to know all relevant surrounding facts

and circumstances of the charged offenses; an offense is not tried in a vacuum.” Id.

        “Lack of consent” is an essential element of aggravated sexual assault. Garrett v.

State, 998 S.W.2d 307, 316 (Tex. App.–Texarkana 1999, pet. ref’d). Whether or not

appellant and Amy had consensual sexual contact was an elemental fact in this case. Id.

        1
          In his brief, Appellant addresses the inapplicability of Texas Code of Criminal Procedure art. 38.37,
which applies to proceedings in the prosecution of a defendant for an offense such as the one at bar, if
comm itted against a child under the age of 17. Given that the indicted offense occurred when Amy was 19,
the State was unable to use art. 38.37 to introduce the evidence of appellant’s other “crimes, wrongs or acts”
com m itted against h er prio r to her seventee nth birthday.

                                                      8
The evidence that appellant continuously had sexual contact with Amy without her consent

and had threatened her in order for her to submit to same was not used to prove that

appellant was generally a child molester. In fact, during the guilt/innocence phasee, the

court specifically forbade Amy from alluding to her father’s sexual assaults upon another

daughter who was under 17. Amy’s testimony about appellant’s prior abuse and sexual

assaults was used to explain why, that although she did not consent to the sexual contact,

she nevertheless submitted to appellant’s demands, i.e. she submitted because of the

submissive mind set or mental disposition and fear created from years of threats and

physical abuse. Thus, the evidence was admissible for a purpose other than to illustrate

appellant’s character and conformity therewith, and the trial court did not abuse its

discretion in admitting it.

       Since the evidence of the prior sexual contact between appellant and Amy is both

relevant to a material contested issue in the case other than the appellant’s character and

that it’s relevancy value outweighs its inflammatory or prejudicial potential, we find no

abused discretion. We overrule appellant’s issue.

                              Issue 3: Limiting Instruction

       Appellant argues that even if the trial court’s ruling regarding the extraneous

offenses was proper the trial court should have given a limiting instruction at the time the

evidence was admitted. We overrule the issue.

       Appellant made a request for a limiting instruction during the State’s case-in-chief

when it introduced evidence regarding the sexual assaults committed and the threats made

while the appellant and Amy were living in Tennessee. The trial court denied the request



                                             9
stating that “[it] [would] instruct the Jury concerning the evidence at the conclusion of the

evidence.” Appellant requested same when the State introduced evidence of the threats

and sexual assaults which occurred in Colorado. Again appellant’s request was overruled.

After appellant requested and was granted a running objection, the State introduced

evidence of further sexual assault and threats which occurred in Lubbock County prior to

appellant moving to Colorado.

       Appellant claims that “[t]he court’s refusal to grant a contemporaneous limiting

instruction when the extraneous evidence was first introduced because the jury would be

so instructed at the conclusion of the evidence was explicitly held to be erroneous and

reversible” by the Texas Court of Criminal Appeals in Rankin v. State, 974 S.W.2d 707

(Tex. Crim. App. 1996). And, “while the trial court may have had discretion in deeming

over thirteen years of extraneous offenses as relevant and more probative than prejudicial,

the trial court did not have discretion in delaying the delivery of a limiting instruction until

the close of evidence when it was properly requested and could [have] been given at a

more opportune time.”

       Prior to appellant’s request for a limiting instruction, the State had introduced the

following testimony: 1) appellant’s first sexual contact with Amy occurred when she was

ten; 2) Amy first informed her mother of the sexual contact when Amy was 16; 3) appellant,

in an attempt to “‘bribe’” Amy not to tell anyone of the sexual contact, said that she “could

be a model and have boyfriend;” 4) after Amy’s older sister left the home, appellant would

“come up to [her] room at night and rub up against her” meaning that “[appellant] would rub

his penis against [her] vagina” without her consent; 5) while the family was in Georgia, the

sexual contact between appellant and Amy continued “two, three times a week” and that

                                              10
“afterwards [appellant] would tell [her] that if [she] told anybody, he would hurt [her] mom,

or if he found out that [she] told anybody things would be worse;” 6) after moving to

Tennessee the sexual contact continued “two or three times a week;” and, 7) appellant

pulled her out of school because he found a note in Amy’s purse from a “guy that [she]

like[d].” Because this evidence was presented before appellant requested a limiting

instruction, it was admitted for all purposes. Hammock v. State, 46 S.W.3d 889, 892 (Tex.

Crim. App. 2001). And, because it had been admitted for all purposes, we do not see how

the subsequent admission of like evidence without a contemporaneous limiting instruction

harmed appellant. This is not to say that no error occurred but rather that we perceive no

harm from it.

                                Issue 4: Involuntary Confession

        Appellant next contends that the trial court erred in introducing the videotape which

contained his confession because the confession was involuntarily given. It was allegedly

involuntary because it was the result of a promise which was unduly coercive.2 We

overrule the issue.

        Standard of Review

        Whether the trial court erred in refusing to suppress a confession depends upon

whether it abused its discretion. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.

1996). And, we will not disturb the ruling if supported by the record. Arnold v. State, 873

S.W.2d 27, 34 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 830, 130 L.Ed.2d 51, 115



        2
         Appellant does not argue that he was duped, deceived, or tricke d into c onfessing but tha t his
admissions resulted from a promise sufficient to overcome his will to be truthful. Thus, we do not address
whether trickery or the like occurred.

                                                   11
S.Ct. 103 (1994). Furthermore, the trial court is the sole factfinder at the hearing. Id. This

entitles it to judge the weight and credibility of the witnesses and their testimony and accept

or reject all or any part of the testimony of any witness, including those of the State or the

defense. Snow v. State, 721 S.W.2d 943, 946 (Tex. App.--Houston [1st Dist.] 1986, no

pet.). So, we must defer to its resolution of pivotal factual disputes.

         Next, a suspect's statement may be used against him when it is freely and

voluntarily made without compulsion or persuasion. TEX . CODE. CRIM . PROC . ANN . art.

38.21 (Vernon Supp. 2002); Campos v. State, 977 S.W.2d 458, 464 (Tex. App.--Waco

1998, no pet.). The determination of whether a statement is voluntary must be based on

an examination of the totality of the circumstances surrounding its acquisition. Bordman

v. State, 56 S.W.3d 63, 69 (Tex. App.–Houston [14th] 2001, no pet.).

         Finally, Texas law has long barred the use of a statement induced by a promise of

someone in authority. Id. A statement is involuntary and thus inadmissible, if it is induced

by a promise that is 1) of some benefit to the defendant, 2) positive, 3) made or sanctioned

by a person in authority, and 4) of such an influential nature as to be likely to influence the

defendant to speak untruthfully. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App.

1997).

         Application of Standard

         Appellant argues that he confessed because the interrogating officers promised to

keep what he said confidential. The video tape of the confession does contain the

following passage: ". . . private confidential police matter and it stays that way. Okay? You

have to be, you have to be content to know that's what's going to happen. Okay? No one



                                              12
knows why you're . . . ." Yet, what was said before or after is unknown for the tape did not

capture it.3 And, because the officer did not remember the context in which the statement

was made, he could only speculate as to why he made it. Nevertheless, after the comment

and the discovery of the malfunctioning recorder, the officer returned to the interrogation

of appellant. When he did so, he expressly asked appellant if any promises had been

made by him (the officer) or deals entered into by the two during the time of the

malfunction. Appellant replied that none had been made. Furthermore, this particular

question and response were recorded on the video tape. So, at the very least, there

existed a question of fact regarding the existence of any promise upon which appellant

could base the supposed coercion. Again, appellant represented on tape that there was

no such promise. And, to that extent, the trial court may well have agreed with appellant

and found that no promise had been made.

        Furthermore, the utterance falls short of insinuating that appellant’s confession

would or could not result in his prosecution or would somehow be the key to his freedom.

The officer clearly informed appellant that his investigation was still a “police matter.” That

the interrogation involved a “police matter,” that appellant was told as much, that appellant

knew the accusations centered upon his relationship with Amy, that appellant knew Amy

had contacted the police, and that appellant had previously been informed that anything

he said could be used against him constitutes some evidence upon which the trial court

reasonably could have decided that the representation was not of the ilk which would have

caused him to admit to a crime he did not commit. So too could it have reasonably


        3
         As will be discussed further when we address the ensuing point of error, the officers said that the
tape recorder stopped and that is why the context to the conversation was missing.

                                                    13
determined that the context was not of the type leading one to believe that the authorities

would forego prosecution if he confessed.

       In short, the record evidence was far from certain as to the existence of a promise

and its effect. And, because it was less than definite, the trial court had the discretion to

weigh it and resolve the factual questions it created. Nor can we say that the ultimate

resolution of the court lacked support in the record. Thus, precedent bars us from

interfering with the decision.

                            Issue 5: Faulty Video Equipment

       Appellant next claims the trial court erred in admitting the videotape because the

videotaping equipment was not functioning properly. We overrule the point.

       Standard of Review

       Whether to admit a video or audio tape recording lies within the trial court’s

discretion. State v. Schaeffer, 839 S.W.2d 113, 118 (Tex. App.--Dallas 1992, pet. ref’d).

In other words, the appellate court must uphold the trial court's ruling if it was within the

zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App.

2001). In addition, the appellate court must review the trial court's ruling in light of what

was before the trial court at the time the ruling was made. Hoyos v. State, 982 S.W.2d 419,

422 (Tex. Crim. App. 1998).

       Application of Standard

       Appellant argues that when he was questioned by the officers from Lakewood

Police Department that he was under custodial interrogation. Because the videotape

contains appellant’s confession made as a result of custodial interrogation, the Texas Code



                                             14
of Criminal Procedure sets forth certain requirements that must met before the statement

can be used against the him. Before a statement can be used, the article requires the

following: 1) an electronic recording must be made; 2) before the statement, but during

the recording, the accused must be admonished as to his rights to remain silent, to have

counsel, to terminate the interview, to have counsel present at the interview, and to have

an examining trial; 3) a predicate must be laid to show that the recording device was

functioning, the recording is accurate and unaltered and the operator competent; 4) the

voices on the tape must be identified; and 5) the accused must be provided with a copy

at least twenty days before trial. TEX . CODE CRIM . PROC . Ann art. 38.22 § 3; Taylor v.

State, 7 S.W.3d 732, 740 (Tex. App.–Houston [14th Dist.] 1999, no pet.). Furthermore,

according to appellant, the tape at bar was inadmissible because it omitted a large

segment of the interrogation by the police. That is, because that segment was omitted, the

tape was not shown to be accurate. We disagree.

      During a pretrial hearing to determine the admissibility of appellant’s videotaped

confession, the trial court heard the testimony from Agent Swainson and Detective Tenney

from the Lakewood Police Department, the two police officers who procured and

videotaped appellant’s confession. Detective Tenney testified that the interviewing process

he employs when questioning a suspect consists of two parts: an interview and an

interrogation. After finishing the interview, Detective Tenney “looked in to check on the

recording equipment and discovered that the tape had stopped.” So, he “restarted the tape

and went back into the interview room and went over the conversation that [he and

Swainson] previously had with Mr. Vasquez.” But, before questioning appellant for the third

time, Detective Tenney established on the videotape that appellant had not been promised

                                            15
anything or that any deal had been made. From this, the trial court could have ruled that

the omission was accidental and sufficiently explained by the officers to nonetheless be

an accurate recording of the conversations which were actually recorded. See Quinones

v. State, 592 S.W.2d 933, 944 (Tex. Crim. App. 1980), cert. denied, 449 U.S. 893, 66

L.Ed.2d 121, 101 S.Ct. 256 (1980)(holding that an altered tape is admissible if the

alteration is accidental and sufficiently explained “so that its presence does not affect the

reliability and trustworthiness of the evidence”). Furthermore, appellant does not suggest

that the omitted portions of the tape somehow contradict or negate the fact that he

confessed or the truthfulness of his confession. Given this, we cannot say that the trial

court abused its discretion in admitting the recording. See Addison v. United States, 317

F.2d 808, 815-16 (5th Cir. 1963) (involving the admission of an audio tape half of which

could not be heard and holding that the tape was admissible since the circumstances

illustrated that the part reproduced was an accurate reproduction of the conversation it

purported to record).

                        Issue 6: Interstate Agreement on Detainers

       Finally, appellant argues that “[s]ince the trial court had notice and the Lubbock

County District Attorney’s Office had notice that appellant was requesting a disposition of

the case which caused the Lubbock County Sheriff’s Office to place a detainer on

appellant, the cause he was being held on should have been dismissed with prejudice after

they failed to dispose of the appellant’s case within 180 days.” We overrule the issue.




                                             16
      Standard of Review

      The denial of a defendant's motion to dismiss an indictment under the Interstate

Agreement on Detainers (IADA) is a question of law reviewed de novo and the factual

findings underlying that decision are reviewed on a clearly erroneous standard. Lindley v.

State, 33 S.W.3d 926, 930 (Tex. App.–Amarillo 2000, pet. ref’d), citing United States v.

Hall, 974 F.2d 1201, 1204 (9th Cir.1992).

       Application of Standard

       The original Lubbock County indictment for which defendant was arrested and

detained in Colorado beginning in 1996 was based on cause 96-423,611 involving an

alleged aggravated sexual assault that occurred on or about January 31, 1996. The State

of Texas re-indicted the defendant in cause number 2001-435,652 on February 14, 2001,

adding a second count of aggravated sexual assault again occurring on or about January

31, 1996. Cause number 96-423,611 was then dismissed on the State’s motion on

February 15, 2001. On February 28, 2001, the defendant was re-indicted in Cause 2001-

435,732, and the indictment alleged a single count of aggravated sexual assault occurring

on August 1, 1996. It was the prosecution of the latter indictment that the resulted in the

conviction of appellant.

       While incarcerated in Colorado, the State of Texas placed a detainer on appellant

on March 3, 1997. On July 28, 2000, the Lubbock County Sheriff’s Office placed a second

detainer on appellant. Appellant argues that since the Lubbock County District Clerk

received notice of his Motion for Disposition and Detainer on September 18, 2000, and the

Lubbock County District Attorney’s Office received same on September 24, 2000, that his



                                            17
case should have been disposed of by March 23, 2001. The State subsequently dismissed

the charge and a filed a new charge. Appellant contends that “[i]f a trial court allows this

practice, the Detainer Act has no value. A person can be held on the detainer, and on day

179, the State can file a new charge as long as it is within the statute of limitations.” We

disagree.

       Each charge filed against appellant is different in that it alleges another crime

appellant committed. Each aggravated sexual assault the appellant committed against

Amy was a different crime for which appellant could be prosecuted. Vernon v. State, 841

S.W.2d 407, 410 (Tex. Crim. App. 1992); Crawford v. State, 696 S.W.2d 903, 905 (Tex.

Crim. App. 1985). The State dismissed the charges against appellant for the aggravated

sexual assault that allegedly occurred on or about January 31, 1996. The State re-indicted

appellant on February 28, 2001, for a distinct aggravated sexual assault which allegedly

occurred on or about August 1, 1996. Given that the State indicted, tried, and convicted

appellant for a crime distinct from that encompassed in the prior indictments and that the

conviction arose within 180 days of the date on which the February 28, 2001 was issued,

we find no violation of the IADA.

       Additionally, to trigger application of the IADA, the defendant must cause to be

delivered to the prosecuting officer and the court having jurisdiction over the prosecution

written notice of the place of his imprisonment and a request for a final disposition. TEX .

CODE CRIM . PROC . art. 51.14 art. III(a); Lindley v. State, 33 S.W.3d at 928. The inmate

bears the burden of demonstrating compliance with these prerequisites. Id. at 930. Here,

appellant has failed to show that he satisfied this burden. That is, the record fails to reflect



                                              18
that a request for final disposition of the February 28th indictment was sent to either the

court or the Lubbock County District Attorney’s office. Therefore, the trial court’s decision

to refuse dismissing the motion was not clearly erroneous.

       Accordingly we affirm the judgment of the trial court.




                                                                Per Curiam


Do Not Publish.




                                             19
