dissenting.
Finding myself in disagreement with the other members of the panel, I would like to record my respectful dissent.
Appellant, Calvin Louis Miguez, appeals from a judgment of conviction for the offense of murder. Appellant pleaded not guilty. The jury found him guilty and the Court assessed his punishment at thirty (30) years in the Texas Department of Corrections. I would reverse and order the trial court to dismiss prosecution of this cause.
In his first ground of error appellant asserts the trial court erred in failing to dismiss the indictment for violation of the Speedy Trial Act. Tex.Code Crim.Proc. Ann. art. 32A.02 (Vernon Supp.1986). I agree.
The record reflects the alleged offense of murder occurred on December 4, 1981, and the complainant was Lynn Renee Mau. On January 21, 1982, appellant was indicted in Harris County for the offense of aggravated kidnapping of Lynn Renee Mau in Cause No. 348735. On March 16, 1982, appellant pled guilty to that offense and was sentenced to five (5) years in the Texas Department of Corrections. Appellant was imprisoned in the Texas prison system until his release on parole on July 31, 1984.
In March 1984, Ronnie Hill contacted the police. Both the Houston Police Department and the Harris County Sheriffs Departments investigated a shallow grave at 13018 Garrett Road in Harris County which Hill showed them and stated a girl by the name of “Renee” was buried there. The grave was located in Ronnie Hill’s yard. After interviewing Ronnie Hill and further investigation the Harris County law enforcement officials learned that appellant was one of three suspects in the beating death of Lynn Renee Mau. Hill testified at trial, that he was present when Renee was beaten by appellant and the two other suspects at his house in December of 1981. Renee died the night she was brought to Hill’s house and she was buried in his yard with his help. He waited until March, 1984, to report this murder to the police because he was scared of retaliation by appellant.
On July 30, 1984, appellant was indicted for the murder of Lynn Renee Mau, the offense on which this appeal is based. The following day, on July 31, 1984, appellant was released from prison on parole. Although appellant kept all appointments with his parole office, he was not arrested until January 18, 1985, over five (5) months after his indictment on the murder charge.
At the May 8, 1985 hearing on appellant’s motion to set aside the indictment, the State announced ready and that it had been “ready for trial on each and every court appearance.”
The Speedy Trial Act provides in pertinent part:
Section 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) [A] criminal action commences for the purpose 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 or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event, the criminal action commences when he is arrested.
*801Sec. 4. In computing the time in which the state must be ready for trial, the following periods shall be excluded;
(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;
TEX.CODE OP CRIMINAL PRO.ANN. art. 32A.02, §§ 1, 2(a), 4(4)(A) & (B) (Vernon Supp.1986).
Article 32A.02 section 1 (1) requires a court to grant a motion to set aside an indictment if the State is not ready for trial within 120 days of the commencement of a criminal action if the defendant is accused of a felony. The commencement of the criminal action in this case was the date the indictment was filed in court, July 30, 1984.
Section 4 of the same article provides that in computing the time by which the State must be ready for trial, there shall be excluded a period of delay resulting from the absence of the defendant because his location is unknown and the State has been unable to determine his location by due diligence. Therefore, the relevant inquiry is whether during the five months following the indictment and appellant’s arrest, the State diligently attempted to locate appellant.
When the State’s announcement of ready is made after the period required by statute has expired, the State must demonstrate that it is ready at the time of the announcement and has been ready at all times during the statutory period, or else it must demonstrate or establish that sufficient periods of time are excludable under the Act. Apple v. State, 647 S.W.2d 290 (Tex.Crim.App.1983); Smith v. State, 659 S.W.2d 828, 830 (Tex.Crim.App.1983).
Securing the defendant’s presence is a readiness burden which falls upon the State under the Speedy Trial Act. Lyles v. State, 653 S.W.2d 775, 778 (Tex.Crim.App. 1983). The failure of the State to have appellant in custody, effectively rebuts the state’s announcement of ready within the 120 day period. The State did not arrest and have appellant in custody, for trial until January 18, 1985. While the State may have been ready for trial from an evidentiary standpoint, it could not have been ready for trial under article 32A.02 without the presence of appellant. Stokes v. State, 666 S.W.2d 493, 494 (Tex.Crim. App.1983); Newton v. State, 641 S.W.2d 530, 531 (Tex.Crim.App.1982).
In Lyles v. State, the Court held that a negligent mistake in the sheriff’s office did not excuse the state’s failure to secure the defendant’s presence, Id. 778, 779.
The State contends the cause of delay in the apprehension and arrest of appellant was the result of an erroneous spelling of his name on the indictment as well as other bureaucratic snags, and not because of a lack of diligence. I do not agree.
At the hearing on appellant’s motion to set aside the indictment, the State presented evidence from the clerk of the 174th District Court that appellant’s last name was incorrectly spelled M-I-Q-U-E-Z, instead of M-I-G-U-E-Z, on the indictment. The State claims that this error caused a delay in the appellant’s apprehension and arrest. An indictment is the State’s pleadings and is prepared by the State and any mistake in the indictment resulted from a lack of due diligence on their part. The record further indicates the State was aware appellant was a suspect in this murder in March of 1984, when Ronnie Hill informed the Harris County Sheriff’s Department of appellant’s involvement. The State was also aware appellant was under a five (5) year sentence for aggravated kidnapping of the same complainant, and would be imprisoned in the Texas Department of Corrections or on parole under supervision of the Texas Board of Pardons and Paroles. If proper diligence were exercised by the State, it could have obtained appellant’s release date from the Texas Department of Corrections prior to his release from prison on July 31, 1984. If this had been done he would have been arrested before his release from prison.
*802Harris County Deputy Sheriff C.W. Dozier testified that on August 7, 1984, he attempted to arrest appellant on the warrant for this case. He went to 13018 Garrett Road, the address where appellant lived sometime prior to going to prison, and also the address given by the State on the warrant. Dozier discovered the house at 13018 Garrett Road had been destroyed. After talking to several persons who lived on Garrett Road, Dozier did not find anyone who knew appellant or his location. Deputy Dozier testified that he then considered this location a dead end. He returned the warrant to his office and entered appellant’s name into the Crime Computer System. Detective Roger Willis with the criminal warrant division of the Harris County Sheriff’s Office testified that on August 29, 1984, and September 1, 1984, attempts were made to serve the warrant on appellant at 1422 Yale Street, Houston, Texas, but no one answered the door. This was an address for- Karen Kay Kopp, a codefendant, and it was believed by the Sheriff’s Department that appellant might be living with her. Another attempt was made on December 24, 1984, at 157 Keel Street, Houston, Texas, but the apartment at this location was vacant. Detective Willis further testified he gave a copy of the warrant to the Houston Police Department.
This series of wild goose chases further proves the lack of due diligence on the part of the State. If the State has used due diligence it would have located appellant in the Texas Department of Corrections prior to his release on parole. After his release on parole, July 31, 1984, the State with due diligence, would have located him through the Texas Department of Corrections and the Texas Parole Board which knew where he lived and where he worked. In fact the record reflects that when appellant was arrested on January 18, 1985, it was in the office of his parole officer, Jim Lahonis. Mr. Lahonis testified he called appellant at work to come to his office and when he arrived appellant was arrested.
I would find the State failed to show due diligence to determine appellant’s location and effect his arrest. Because of the failure of the State to comply with the Speedy Trial Act, I would reverse the judgment of the trial court and order prosecution dismissed.
Lastly, the State asserts that Article 32A.02 is unconstitutional because its caption violates Article III, Section 35 of the Texas Constitution. The State’s claim is that the caption is not so specific as to give fair notice as to the subject and contents of the bill. I disagree with the State’s contention and agree with the decision handed down by this court in Bedford v. State, 703 S.W.2d 775 (Tex.App.—Houston [14th Dist.] 1985, no pet.); Beddoe v. State, 681 S.W.2d 114 (Tex.App.—Houston [14th dist.] 1984, pet. pending) holding that the caption of the Texas Speedy Trial Act is not constitutionally defective.