dissenting.
I respectfully dissent. In response to appellant’s motion, which was heard on December 5, 1980, the prosecutor announced that “The State had everything in its file then that we have now. And we’re prepared to go to trial.” I would hold that this statement was tantamount to an announcement that the State was ready for trial within the limitation period. This announcement created a rebuttal presumption that the State was ready for trial within the times required by the statute. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979).
Appellant contends that the evidence adduced on the motion rebuts this presumption by showing that the State had not actually secured his physical presence in the trial court.
By way of stipulation the following sequence of events was established. The criminal action commenced on May 20,1980, when appellant was arrested for unauthorized use of a motor vehicle. Appellant remained in custody in Cameron County under this charge until June 28, 1980, (the *36640th day) when he was transferred to Harris County for trial on an outstanding aggravated assault charge. On August 6, 1980, (day 78) appellant was indicted for the offense which had resulted in his arrest on May 20. On September 10, 1980, (day 113) appellant was sentenced in Harris County and began serving a ten-month jail term in Harris County jail. September 16, 1980, (day 120) was the last day of the 120-day limitation period applicable to this case. Because of a “hold” placed on him by Cameron County, appellant, after serving his sentence, was returned to Cameron County on October 23, 1980, for trial under the indictment. On October 29, 1980, the indictment capias was served on appellant. On November 6, 1980, the trial court appointed counsel to represent appellant at trial. On November 12,1980, appellant was arraigned. The case was set for trial on December 5, 1980, but was not reached because of a crowded docket. The trial finally began on December 17, 1980.
The prosecution cannot be ready for trial under the “Speedy Trial” statute unless within the limitation period it causes the defendant to be placed in a status whereby he can be compelled to appear at trial. Lyles v. State, 636 S.W.2d 268 (Tex.App.—El Paso 1982). A defendant who is arrested and is placed in a Texas jail subject to a “hold” to answer charges in another county is in a status which enables the State to compel his presence at any time for trial.
The evidence shows that appellant was arrested by Cameron County authorities for the offense of unauthorized use of a motor vehicle on May 20, 1980. It must be presumed that, as far as Cameron County is concerned, he remained in that status through September 16, 1980, until the day of his trial, there being nothing in the record to indicate he was ever released from custody under those charges. Even though appellant was physically in Harris County between August 6 and September 16, he was still in the constructive custody of Cameron County because of its “hold.” He was available for trial in Cameron County by means of a bench warrant at any time the case was set and called for trial within the limitation period. The majority would have Cameron County go to the added expense of bringing the defendant down from Harris County to Cameron County within the 120-day period, to prove to the defendant that they were “ready for trial.” This is in contravention of the Speedy Trial Act and is wrong.
Appellant was apprehended and placed in custody under the charges. His whereabouts were always known within the limitation period. I would hold that his presence for trial was thereby secured and that, in this regard, the State was ready for trial. Ground of error one should be overruled.