A capital murder charge against a defendant held for trial in Freestone county was dismissed last week by the 10th Court of Appeals in Waco on grounds that the trial did not start within a statutory federal time limit.

The capital murder charge against Oscar Ray Doster, 33, indicted in the April 6, 2005, death of rancher Dennis Courtney in eastern Freestone county, was dismissed on appeal in a split decision of 10th Court justices.

Freestone County Attorney Chris Martin, who was sworn into office the day the appeals court decision arrived at the courthouse, plans to appeal the ruling.

"Obviously, we disagree with the opinion," Martin says. "Our office, along with the Attorney General is filing a stay of the mandate and a petition for discretionary review with the Court of Criminal Appeals in Austin."

In the meantime, co-defendant James Harnage filed an appeal mirroring that of Doster's on Dec. 1, 2008. The court has yet to rule on the Harnage appeal.

Prosecution of the cases is being handled by capital murder trial specialist Wesley Mau of the office of Texas Attorney General, along with the Freestone county attorney.

Doster and Harnage were escapees from the Covington county jail in Alabama and fled west, allegedly stopping briefly in Freestone county.

The victim, who lived in Louisiana and was working at his Freestone county ranch, was reported missing to Freestone county sheriff's office by his wife.

Deputies searched the ranch and found Courtney's body hidden between two outbuildings with blunt force and gunshot wounds.

Investigation revealed that a Ford dually pickup truck and a 4-wheeler were missing from the ranch.

The two vehicles and the defendants were located about two weeks later and the pair were returned to Alabama to face charges there.

Doster was convicted of capital murder in Alabama in 2006 in connection with a case similar to the one in Freestone county—-he escaped from jail, killed someone and stole a vehicle.

Doster was arrested after the Freestone county murder in California when he sought medical treatment for injuries sustained when he wrecked a 4-wheeler, which was identified as the one stolen from the Courtney ranch.

Harnage was arrested in Las Vegas, Nev., after police spotted a pickup truck matching the description of the one missing from the Freestone county crime scene and matched its license plate.

Indictment of the two defendants on capital murder charges in Freestone county was delayed until May 30, 2007, to avoid run- ning afoul of the Texas speedy trial act, but the appeal ruling last week on the Doster case is that a federal speedy trial act was violated.

Under the federal Interstate Agreement on Detainers a trial "shall be commenced within 120 days of the arrival of the prisoner in the receiving court." Following the 120-day timetable, Doster should have gone to trial by April 25, 2008.

Doster appeared in court for arraignment on the capital murder charge on Jan. 28, 2008, and, with his attorney, agreed to a trial start date of Aug. 4.

However, a motion was filed April 11 to object to a delay in the trial, and another motion was filed May 2 seeking to dismiss the charge.

The April motion cited the IADA and its deadline of April 25 to start the trial.

Dismissal of the charge was denied in Freestone County 87th district court after the May 2 hearing, setting the stage for an appeal.

The state argued that because Doster and his attorney did not object to a trial date of Aug. 4, the defendant effectively waived his right to a speedy trial under IADA.

Doster's attorney, however, successfully argued that "the absence of an objection did not constitute an agreement" to delay the trial beyond the 120-day timetable.

Two of the three 10th Court of Appeals justices agreed in the majority ruling that Doster made a demand under IADA to start the trial while there was adequate time to commence before the timeline expired, and that the state did not demonstrate good cause for the delay.

Chief Justice Tom Gray dissented, commenting that the defendant should not be allowed to agree to a later trial date, then be allowed to change his mind to manipulate the law.

"We believe Chief Justice Gray's dissenting opinion is the proper interpretation of the law," Martin says.

The appeal of the majority opinion will first be filed with the 10th Court which could decide to rehear the dismissal motion. Martin points out that one of the 3-member panel of justices retired at the end of 2007 and the new justice could view the case differently.

If the 10th Court affirms its ruling, an appeal will be made by the county attorney to the Texas Court of Criminal Appeals in Austin.