Pedro FLORES, Appellant, v. STATE of Texas, Appellee, 647 S.W.2d 363

OPINION GONZALEZ, Justice. This is an appeal from a conviction for unauthorized use of a motor vehicle. In his first ground of error, appellant contends that the court committed error in overruling his motion to dismiss the indictment under the provisions of the Speedy Trial Act. We agree. On May 20, 1980, appellant was arrested in Cameron County for the above felony. On June 28, 1980, he was transferred to Harris County on an outstanding warrant for aggravated assault. On August 6,1980, he was indicted for unauthorized use of a motor vehicle in Cameron County.

On September 10, 1980, appellant was adjudicated guilty in Harris County of misdemeanor assault and sentenced to 120 days in jail. Six weeks later, on October 23, 1980, appellant was returned to Cameron County. On November 6, 1980, appellant was appointed a lawyer and on December 1, 1980, he filed a motion under the Speedy Trial Act.

At that hearing, the State announced ready for trial then and since the indictment was returned on August 6,1980. (In their brief, the State argues that “except for the fact that appellant was in another county’s jail, the State was at all times required under the Act, ready to proceed ... ”) During the week of December 17, 1980, appellant was tried before a jury and was found guilty. Preliminarily, the State contends that appellant failed to preserve anything for appellate review by not filing a written motion to dismiss the indictment. This contention is without merit.

Though appellant’s timely filed written motion is styled “Defendant’s Motion for Speedy Trial,” appellant in this motion alleges that he was confined for 180 days awaiting trial and does request that the indictment be dismissed. The court’s docket sheet has an entry that reads “Set on Def’s motion to dismiss for 5 Dec. 1980 2:00 p.m.” The record also shows that at this hearing, the topic of discussion by all concerned were the provisions of the Speedy Trial Act. Therefore, though appellant’s motion is not a model pleading, it was sufficient for appellant to invoke his rights under the Speedy Trial Act.

The question for us to determine is: Under these facts, was the trial court correct in excluding the 116 days (June 28, 1980 to October 23, 1980) appellant was in custody on other charges in Harris County?

Article 32A.02 of Tex.Code Crim.Pro., in pertinent part provides: “Sec. 1. A court shall grant a motion to set aside an indictment ... if the state is not ready for trial within: (1) 120 days of the commencement of a criminal action if the defendant is accused of a felony; Sec. 2. ... a criminal action commences for purposes of this

article when an indictment ... against the defendant is filed in court, unless prior to the filing the defendant is either detained in custody ... in which event the criminal action commences when he is arrested. Sec. 4. In computing the time by which the state must be ready for trial, the following periods shall be excluded: (1) a reasonable period of delay resulting from other proceedings involving the defendant, including but not limited to proceedings for the determination of competence to stand trial, hearing on pretrial motions, appeals, and trials of other charges. (4) a period of delay resulting from the absence of the defendant because his location is unknown and: (

A) he is attempting to avoid apprehension or prosecution; or (

B) the state has been unable to determine his location by due diligence; (5) a period of delay resulting from the unavailability of the defendant whose location is known to the state but whose presence cannot be obtained by due diligence or because he resists being returned to the state for trial; (9) a period of delay resulting from detention of the defendant in another jurisdiction, if the state is aware of the detention and exercises due diligence to obtain his presence for trial; ...” It is evident then that our Speedy Trial Act addresses itself to prosecutorial delay rather than delay resulting from the judicial process itself.

If the State announces ready within the statutory time period, this establishes a prima facie showing of compliance with the Act. Upon such a showing, the burden shifts to the defendant to show that the State was not ready within the time limit. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). The presence of a defendant is a readiness burden which falls upon the State and the absence of a defendant rebuts a prima facie showing of ready. Newton v. State, 641 S.W.2d 530 (Tex.Cr.App.1982); Lyles v.

State, 636 S.W.2d 268 (Tex.App.—El Paso 1982). “The State may be ready for trial from an evidentiary stand point, and yet not ready for trial, under

Article 32A.02, for failure to secure the presence of the defendant. The presence of the defendant is a readiness burden which falls upon the State. This is clearly indicated by the fact that the speedy trial tolling exceptions include three instances in which the State will not be charged with delays due to the defendant’s absence.” Lyles v. State, supra, 271. This language was adopted by the Court of Criminal Appeals in Newton v. State, supra.

The court in Newton said: “... it is obvious that mere absence of the defendant is a circumstance that, except for those specific statutory exclusions, does not toll the statute and, therefore, prevents the State from being ready within the meaning of the statute.

If the absence of the defendant was intended by the Legislature to have no effect on the readiness of the State, there would be no need for the statutory exclusions of Sec. 4(4), (5) and (9).” In our case, since the presence of a defendant is a readiness burden which falls upon the State, appellant’s absence effectively rebutted the prima facie showing of readiness made by the State. The burden then shifted to the State to prove that there were excludable periods of delay that would extend the initial time limitation. Newton v. State, supra; Phipps v. State, 630 S.W.2d 942 (Tex.Cr.App.1982); Pate v.

State, 592 S.W.2d 620 (Tex.Cr.App.1980). Potentially, the applicable provisions of exclusion in our case were sections 4(1) and (9). We do not agree that Harris County could keep appellant in their custody for as long as was necessary to adjudicate the charges pending against him as the State argued at the hearing below. We also disagree that Cameron County had no burden to try to get appellant back within the time period.

Since the State failed to discharge its burden to show that the period of delay was reasonable under section 4(1) or that they exercised due diligence to obtain his presence under 4(9) or other exclusions under

section 4 from the time by which the State must be ready for trial, appellant is entitled to the relief under the Speedy Trial Act. The trial court erred in overruling appellant’s motion to dismiss the indictment. In light of our disposition, the other grounds of error need not be addressed. The judgment of the trial court is reversed and the indictment is ordered dismissed and the appellant discharged.