dissenting.

In a published opinion a court of appeals has decided an important point of law that has been begging resolution. Yet the majority would reverse the judgment of the court below on its determination that in the trial court appellant did not “adequately raise” the issue. Ergo, the court of appeals “erroneously reversed” the judgment of conviction. Because that kind of “review” should no longer be a proper function of this Court in its new constitutional role, I must protest what is done today. Even so, the majority comes to the wrong conclusion.

At a pretrial hearing appellant presented inter alia his Motion to Set Aside Indictment for Failure to Grant Speedy Trial. The judge concluded:

“I read the rule and I think as long as it’s out of the same transaction, it’s alright. So for the record, the Court will deny your Motion for Speedy Trial [sic].”1

Alert to protecting his position, the assistant district attorney immediately stated:

“And, also, for the record, Your Honor, with Ms. Burney and the Defendant present, ... its undisputed this case was reindicted on the other ease, arising out of this transaction,_”

After the interruption he added “retaliation.” Appellant’s attorney, Ms. Burney, had asked leave to “go on the record to get this clear” and the judge responded, “Sure.” There then followed a lengthy dialogue that developed the chronology of events in the *359criminal action from arrest of appellant through occasions when the State announced ready to reindictment, concluding with a stipulation that the latter added allegation of tampering “arose from the same transaction”—to all of which the court indicated its approval for the record.2

While it is certainly true that the motion did not invoke Article 32A.02, Y.A.C.C.P. (the Act) and that during the course of the pretrial hearing no one mentioned the Act, it is just as true that there is a docket sheet entry of that date which reads: “Motion to Dismiss—Speedy Trial Act Denied.” Obviously, the court and the parties knew what they were about.

It is also true that the Act is not cited by appellant in his brief to the court of appeals, but he did cite and discuss several decisions of this Court construing requirements of the Act. In response, the State supported denial of his motion “because both counts of the indictment ... arose out of the same transaction,” and added the supportive discussion of decisions under the Act that I have set forth in the margin.3

Presumably the cause was submitted to the court of appeals on oral argument, and the issue further illuminated, for in the second paragraph of its opinion that court wrote:

“The controlling question in this appeal is whether, under the Speedy Trial Act, an announcement of ready on one offense arising out of a transaction constitutes an announcement of ready on an unindicted offense arising out of the same transaction.”

I am not prepared to agree that judges of the court of appeals listened to oral argument, read the briefs, examined the record, researched the law and then wrote an opinion to decide a “controlling question” that had not been properly presented to that court. Accordingly, we ought to address the merits of the issue decided by the court below, and to that I now turn.4

True the Act treats offenses arising out of the same transaction together, but it does not treat announcements of ready together.5 To support an assertion that an*360nouncements of ready carry over to another offense arising out of the same transaction, some have cited provisions that concern announcements of ready only insofar as when the State must be ready for trial. Article 32A.02, § 2(a) outlines when we mark the commencement of a criminal action for the purpose of computing time limits. Article 37A.02, § 2(c) concerns the situation where an indictment is dismissed on the motion of the defendant. Article 28.061 concerns procedures to follow after a defendant receives a speedy trial discharge and he faces other indictments arising out of the same transaction. No provision in the Act mentions carrying over announcements of ready from an indictment superceded on the State’s motion, by an indictment alleging a different offense.

In the instant case appellant was arrested November 20, 1980, on a charge of retaliation. V.T.C.A. Penal Code, § 36.06(a). The February 12, 1981 indictment alleges the primary offense of retaliation in terms of threatening to kill a named complainant “in retaliation for and on account of [her] service ... as an informant.” The second indictment, returned April 16, 1981 did not alter allegations of that offense, but corrected allegations in enhancement paragraphs. The third indictment of May 14, 1981 added a count alleging the offense of tampering with a witness under id., § 36.-05(a)(1), (2) and (4), viz:

“... that on or about the 18th day of November 1980 ... [appellant] did then and there unlawfully, intentionally and knowingly with intent to influence the witness coerced a prospective witness ... in an official proceeding to testify falsely and withhold testimony and information and to absent herself from an official proceeding to which she had been legally summoned ...”

Without any doubt, though arising out of the same transaction, the alleged offense of retaliation and the alleged offense of tampering with a witness are not the same— call it “offense,” “case,” “single case” or whatever. See Rosebury v. State, 659 5.W.2d 655 (Tex.Cr.App. 1983) and Richardson v. State, 629 S.W.2d 164 (Tex.App.—Dallas 1982, pet. ref’d.). Nevertheless, the State would have us hold that offenses arising out the same transaction are to be treated together for the purposes of the Act so that an announcement of ready for trial by the State with respect to one offense will apply to another.

While the Act takes into account and arguably at least “treats together all offenses committed during the same transaction,” it does not follow that an announcement of ready as to one offense also constitutes an indication of readiness for all other offenses from the same transaction. Indeed, in Richardson v. State, supra, the court of appeals held otherwise with respect to a November 28, 1979 indictment for an offense arising out of the same transaction for which accused had been arrested July 3, 1978.6 See Rosebury v. State, supra.

*361However, the true reasons why an announcement of ready to try an accused on one charging instrument is not treated as an announcement to try the same accused on another offense from the same transaction are found in prominent features of the Act. First and foremost, it must be remembered that the legislative imperative is that the State be “ready for trial.” It is this Court that allows an announcement of ready to constitute prima facie showing of readiness which may be rebutted by evidence demonstrating that “the state was not ready for trial during the Act’s time limits,” Barfield v. State, supra, at 542.

How the Act takes into account all offenses arising out of the same transaction is 'in its concept of when a criminal action commences. Article 82A.02, § 2. Putting aside for the moment special situations such as retrials, id., § 2(b) and dismissals, § 2(c), usually initiated by an accused, § 2(a) provides that a criminal action commences when an indictment, information or complaint is “filed in court” unless the accused has been held to answer for the same offense or any other offense “arising out of the same transaction,” and in that case the criminal action commenced when he was first arrested. Thus, when an accused is arrested before an indictment, information or complaint is “filed in court,”7 with certain exceptional situations aside, a criminal action commences for every offense arising out of the same transaction for which he was arrested. Article 32A.02, § 2. The time within the State must be ready for trial depends upon what accusation is made against accused. Article 32A.02, § 1. Therefore, a legislative objective is to cause the State promptly^ to sort out its offenses, obtain one or more charging instruments and get ready for trial within that period of time prescribed from commencement of the criminal action. The legislative mandate under the Act is that within the time prescribed the State must be ready for trial in a criminal action on every charging instrument alleging an offense it has caused to be filed in court. The prescribed period of time for complying with that mandate may not be elongated by stringing out successively one charging instrument after another beyond the particular limitation imposed, except when extended by showing some justification recognized by one or more ex-cludable periods provided by the Legislature under id., § 4. Cohen, Senate Bill 1043 and the Right to a Speedy Trial in Texas, Vol. 7, No. 1 American Journal of Criminal Law (March 1979) 23, at 35-36.

The only allusion to the State’s announcing ready for trial one quickly finds in the code of criminal procedure is in connection with a case being called for trial by jury. Article 35.01, V.A.C.C.P. Still, general custom and practice is that as the trial docket is sounded an announcement of ready or not is to be made in each case, and also later when again a particular case is called for trial by court or jury. See 23 Tex.Jur.3rd 126-127, § 2529-2531. And an announcement of ready at the latter time is not only meaningful but also binding throughout the trial that follows except for such an unforeseen extraordinary development that a fair trial cannot be had. Article 29.13, V.A.C. C.P. However, there is no suggestion in the code or our Act that an announcement of ready for trial on an instant indictment in response to call of the court attaches as well to another charging instrument alleging any other offense arising out of the same transaction.

*362From that excludable period allowed the State by § 4(7)—when it dismisses a charging instrument and later files another alleging an offense arising out of the same transaction—this Court has found:

“[I]t implies a continuing relationship between the time periods covered by the previous indictment and the subsequent one. This exclusion is designed to prevent abuse by the State, and it should be construed to provide that the defendant is entitled to add [to the time on the subsequent charge] the time which expired while the previous charge was pending.”

Durrough v. State, 620 S.W.2d 134, 139 (Tex.Cr.App. 1981).

Patently, to say that an announcement of ready on one charging instrument is an indication of readiness on all other offenses arising out of the same transaction would permit the very abuse by the State that the Act was designed to prevent. It is of no moment that witnesses, facts and evidence may be common to each offense—indeed, according to the evidence, the elements of tampering with a witness and retaliation, respectively shown in this cause, are not the same.8 The Act contemplates just such happenstances by bundling together all offenses arising out of the same transaction, and requiring the State to be ready for trial within that time specified for each offense reduced to a charging instrument, here commencing with arrest of an accused. See Kalish v. State, 662 S.W.2d 595 (Tex.Cr.App. 1983).

Therefore, the judgment of the court of appeals is correct and should be affirmed. Instead a majority of the Court reverses because from its examination of the record it believes that the court below decided a question not properly presented. The occasion for making the determination now made by the majority, if we are to make it, was when the petition for discretionary review was considered. To such a waste of time, resources, and effort of the criminal justice system I must dissent.

*358OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

This is an appeal from a conviction of tampering with a witness. Art. 36.05, V.A. C.C.P. The First Court of Appeals, 646 S.W.2d 485, in Houston, holding that the state had failed to comply with the requirements of the Speedy Trial Act, Art. 32A.02, V.A.C.C.P., reversed the conviction and ordered the cause dismissed. We granted the State’s Petition for Discretionary Review on January 5,1983, to determine whether or not the Court of Appeals erred in its decision. We find that it did and reverse.

Upon careful review of the record we find that the appellant failed to adequately raise his right to a speedy trial as afforded by Art. 32A.02, V.A.C.C.P.1 Although a written motion was filed asserting appellant’s right to a speedy trial, the provisions of 32A.02 were never invoked.2 The statute clearly requires that the motion for discharge be made “under the provisions of this Article” to avoid a waiver of the statutory rights.3 Having failed to expressly invoke Art. 32A.02, supra, the appellant has waived his statutory right to a speedy trial. Because the Court of Appeals erroneously reversed the conviction on the basis of a violation of Art. 32A.02, we reverse the judgment and remand the case to the Court of Appeals for action not inconsistent with this opinion.4