Elaborating on those facts, the Corpus Christi Court of Appeals found that appellant had not been "detained in custody," so that "the criminal action against appellant did not commence at that time." Rios v. State, 688 S.W.2d 642 (Tex.App. — Corpus Christi 1985). Agreeing factually with the Corpus Christi Court in that respect, this Court refused appellant's petition for discretionary review contending that he had been "detained in custody" within the meaning of § 2(a).
(B) the state has been unable to determine his location by due diligence; (Emphasis added.) The criminal action commenced at the time the formal complaint was filed on January 7, 1985. Apple v. State, 647 S.W.2d 290 (Tex.Crim.App. 1983); Rios v. State, 688 S.W.2d 642 (Tex.App.-Corpus Christi 1985, pet. granted), disagreeing with Davis v. State, 630 S.W.2d 532 (Tex.App.-Amarillo 1982, no pet.). Where the State's announcement of ready came 121 days after the commencement of the criminal action, and the State did not announce that it had been ready during the 120-day period, the State had the burden to show that enough time was excludable from the computation of days between complaint and announcement of ready so as to bring it within the 120-day limit.
The criminal action against appellant commenced for purposes of the Speedy Trial Act on either November 7, 1983, the day a complaint against appellant was filed and a warrant for his arrest issued, or on January 19, 1984, the day appellant was indicted. Compare Apple v. State, 647 S.W.2d 290 (Tex.Cr.App. 1983) and Rios v. State, 688 S.W.2d 642, 646 (Tex.App. 1985, pet. granted) (felony prosecution commences with filing of complaint) with Rosebury v. State, 659 S.W.2d 655, 657, n. 1 (Tex.Cr.App. 1983) (Clinton, J., concurring) and Davis v. State, 630 S.W.2d 532 (Tex.App. 1982, no pet.) (felony prosecution commences with filing of indictment or information). The State first announced ready on December 13, 1983.