*1 Appellant’s point so. sixth is over- error
ruled. judgment of the trial court is affirmed. MALONEY, JJ., dissent.
CLINTON and Jean MATTHEWS.
No. 243-93. Texas,
Court of Criminal
En Banc. 12, 1994.
Jan. Haynes Rainey,
Richard and Ron S. Hous- ton, appellant. Holmes, Jr., Atty., Harvey
John B. Dist. J. Hudson, George Lambright, Asst. Dist. Houston, Huttash, Attys., and Robert State’s Austin, Atty., for the State.
OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW BAIRD, Judge.
Appellant was per- indicted for jury allegedly committed on June Appellant’s Tex.Penal Code Ann. 37.03. presented was January 1993 and that the statute of limita- tions was tolled.1 Tex.Code Crim.Proc.Ann. 12.05(a).2 Appellant challenged the in- (a) 1. The statute of limitations for the offense The tíme which the accused is ab- aggravated perjury years. is three Tex.Code computed sent from the state shall not 12.01(5). Crim.Proc.Ann. art. period of limitation. provides: 2. Tex.Code Crim.Proc.Ann. art. 12.05
41
commences, he waives and forfeits
dictment,
constitutionality of
merits
the
defect, error,
object
12.05(a),
right
to the
or
pre-trial application for writ
the
to
in a
art.
may
judge
irregularity
denied
and he
not raise the ob-
corpus. The trial
of habeas
However, the
appellant appealed.
jection
any
postcon-
other
relief and
or
appeal for
the
Nothing
dismissed
in this article
proceeding.
Court of
viction
Matthews,
jurisdiction. Ex
requiring
lack of
prohibits the trial court from
(Tex.App.
[1st Dist.]
objection to an indictment or infor-
that an
— Houston
petition for
granted appellant’s
We
made at an earlier time in com-
mation be
discretionary
to determine whether
review
28.01 of this Code.4
pliance with Article
challenges
an indictment
be
to
certain
(Tex.Cr.
State,
In Studer v.
799 S.W.2d
for writ of
pre-trial application
in a
raised
interpreted
amendments
we
the
App.1990),
corpus.3
12(b)
V, §
to art.
and art. 1.14 and held
charging
instrument
waived
defect
I.
prior to trial.
799 S.W.2d
unless raised
issue is whether the
The threshold
State,
also, Bridwell v.
at 273. See
12(b)
V, §
of the
to art.
1985 amendments
(Tex.Cr.App.1991);
State
challenges
preclude
to a
Texas Constitution
Murk,
(Tex.Cr.App.
by way
pre-trial
of a
charging instrument
State,
1991); DeDonato v.
corpus. Art.
application for writ of habeas
Morris,
(Tex.Cr.App.1991); Ex
12(b)
V,
provides:
§
(Tex.Cr.App.1990);
(b)
instrument
An indictment is a written
(Tex.Cr.
Gibson,
548, 550
by
grand
presented to a court
App.1990).
the commission of
charging
person
with
V,
to art.
Relying upon the amendment
An information is written
an offense.
12(b)
1.14, the
contends:
§
and art.
State
by an
presented to a court
instrument
person
attorney
charging a
for the State
error in
The doctrine of “fundamental”
The
the commission of an offense.
with
juris-
passed from the
indictment has
an
relating to the use
practice
procedures
and
Assuming that the
prudence of this state.
informations, including
of indictments and
by a
in this case was returned
contents,
sufficiency,
their
Jury,
Appellant does
which
lawful Grand
requisites,
provided
are as
law.
jurisdiction upon
dispute,
imparted
it
an
or infor-
presentment
The
however severe its technical
the trial court
court with
mation to a court invests the
words,
In other
and omissions.
errors
jurisdiction
cause.
of the
“voidable,”
it
be
while an
12(b).
V,
Constitution,
§
art.
Texas
“void.”
longer
can no
1.14(b),
art.
Crim.Proc.Ann.
Tex.Code
pg.
Brief
6.
State’s
enabling legislation
is the
amended
12(b)
V,
provides:
§
for art.
believe,
“common sense inter
from a
V,
to art.
pretation” of the amendments
object to a
If
does not
the defendant
12(b)
that the amendments
defect, error,
irregularity of form or
or
apply
post-conviction
intended to
were
indictment or information
substance
inapplicable
and are
attacks on indictments
which the trial on the
before the date on
Appellant’s ground
states:
(b)
pendency
for review
of an indict-
time
The
ment, information,
complaint shall not be
or
plead
required
If the State
period
computed
of limitation.
indictment,
a defen-
a valid
can
statute to have
(c)
pendency,”
"during
as used
term
constitutionality
that stat-
dant
herein,
beginning
period
of time
means
information,
indictment,
pre-trial
by way
ute
day
or
with
competent
complaint
a court of
is filed in
ending
day
jurisdiction,
such ac-
with
supplied
emphasis
unless otherwise indi-
4. All
is,
having
of a trial court
cusation
an order
cated.
thereof,
jurisdiction
to be invalid
determined
any
reason.
pre-trial
proceedings.5
When the
for writ of habeas cor-
pus.
Committee
hold the
Senate Criminal Justice
discussed
amendments to
12(b)
proposed
amendments to
1.14
constitutional
and art.
did not alter our
*3
(Senate
jurisprudence relating
pre-trial applica-
12
Bill 169
to
and art. 1.14
16),
corpus.
tions
Senate Joint Resolution
Senator Brown
for writ of habeas
stated:
Basically,
the resolution
this bill and
is
II.
designed
provide
doing
to
for a method of
rule,
general
an
As a
indictment
away
problem
with the troublesome
we all
pre-trial
a
challenged
application
not be
in
recognize has
the courts in this
confronted
corpus.
parte Mang
for writ of habeas
Ex
is,
time, and that
in
State for some
defects
rum,
(Tex.Cr.App.1978);
564
751
S.W.2d
Ex
are not
the indictment which
raised at the
Delbert,
parte
(Tex.Cr.App.
145
time of trial
are which are
and then
raised
1979);
Bonds,
parte
198,
Ex
148 Tex.Crim.
appeal
for the first time on
and which in
(1945); and,
parte
Senate Criminal Committee Justice S.W.2d at 755. In Ex Further, March in 1985. the House Floor (Tex.Cr.App.1978), S.W.2d 660 we reviewed a proposed Debate on Repre- the amendments pre-trial application writ of corpus for habeas explained: sentative Dan Morales challenging tolling provisions the of Tex.Code Any regard ... defect to form with or 12.05(b). Crim.Proc.Ann. got substance in a criminal indictment has Finally, in 5.W.2d at 662. Dicker prior to be raised to the trial on the merits. son, (Tex.Cr.App.1977), we basically, legislation So what the would do held that Dickerson was entitled to a writ of simply require the that defendant raise the indictment on where its any regard sort of technical defect with to face showed the was barred preclude an trial prior to to a the statute of limitations. through go situation where we the entire challenges have to an entertained trial, sentence, get verdict, ultimate by pre-trial applications raised for writ of trial, conclusion to that and then have the corpus.6 raised, resulting in defect a reversal. Debate, May House Floor 1985. Fur- III. ther, nothing legislative there is histo- ry indicating Legislature Appeals recognized the The intended Court of the foregoing for the amendments affect a exceptions to defendant’s but nevertheless dis ability challenge by way appeal appellant an indictment of missed the did “not testimony 5. In his the 6. before Senate Criminal The State that certain concedes issues are amendments, concerning properly pre-trial Justice Committee considered in a See, Robinson, State Prosecutor Huttash Robert stated: (defendant (Tex.Cr.App.1982) may raise a claim all, any ... First of I think there don't pre-trial jeopardy application of double in a perfect up way draw constitutional State, corpus); Stephens writ of habeas amendment or a to deal with statute indict- 1990) (defendant (Tex.Cr.App. S.W.2d 812 think, ments and I would informations. jeopardy raise a state, claim of double in a hope, appellate that the courts of this courts, corpus); for writ of habeas give courts and the will trial this bill Keller, (Tex.Cr.App. passed, and this constitutional if 1980) (defendant may interpretation. seek a determination common sense of pre-trial applica hearing, Senate Committee Criminal Justice reasonableness bail corpus). March tion for habeas Accordingly, indictment. the Court under which she her challenge the statute statute, facially dismissing inval- perjury Appeals as erred charged, the judgment Meyer [nor] ... does lack of id as face as void on its the indictment is reversed and the case is Court Ward_” Matthews, 846 at for consideration of remanded to Court disagree. 154. We appellant’s points of error. challenge the Although appellant does not MILLER, J., only joins part I concurs but statute, aggravated perjury
validity of the parts II III. Ann. Tex.Penal Code limitations alleges the statute of in this case *4 CLINTON, Judge, dissenting. pursuant to Tex.Code Crim.Proc. was tolled authority in our law for a There is no 12.05(a). allegation, art. Without this Ann. validity corpus attacking pretrial habeas presented. appellant’s not be charging in allegations of instrument 12.01(5). There- Tex.Code Crim.Proe. applicable statute of limitations conviction, fore, in order to obtain a the State of applied “as to the facts and circumstances per- prove of must the elements present offense” is unconstitutional on tolling of the statute of limita- and the grounds. parte Mat asserted several validity of Appellant challenges the tions. thews, (Tex.App.— at 154 limitations, without which there the statute of 1993). Houston meaning- prosecution. We see no can be no ful between the instant case and distinction procedure of criminal enumer- The code Meyer. in pleadings of a defendant ates authorized “(1) 27.02, A The first is Article V.A.C.C.P. Further, Appeals of erred in the Court exception to set aside or an motion concluding distinguishable was from Ward for some matter indictment or information of contrary, case. To the the cases the instant form or substance.” very are similar. Ward’s of an offense on a date be- the commission a motion to set aside are Grounds for yond of limitations. The indict- the statute in Arti- prescribed generally limi- alleged that the statute of ment further and do not embrace the cle V.A.C.C.P. Ward, 560 at 661. tations was tolled. ground application in the instant asserted pre-trial application filed a for writ Ward habeas corpus contending of limi- the statute exception for an Exclusive reasons judge and the trial tations was not tolled are delineated some matter of substance appealed relief. and we re- denied Ward 27.08, V.A.C.C.P., one at least Article versed, holding of limitations was the statute ground, viz: to the asserted relates Id., In the tolled. at 662. appears there- “2. That it from face case, alleges com- the indictment instant for the offense is prosecution that a beyond the mission of an offense on a date by lapse of time[.]” barred The indictment fur- statute of limitations. clearly shows that limitations the record here alleges that the statute of Because ther 12.05(a). Appel- stipulated evidence and applicant relied pursuant tolled to art. was going to his constitu- challenged documentary evidence writ lant’s claims, invoking 12.05(a) appellant cannot be judge trial denied relief. tional and the 27.08, 2. of that decision. Article Appellant now seeks review between there is no distinction applicant also shows that Thus the record correct, Ward; if this case and appeal he does not is not entitled limitations barred prosecution will be her indictment; challenge facial to the make a just prosecution as the Ward. by the cited and discussed the authorities disposition of majority “control the will not Meyer disposition control the Ward appli- this cause.” Ex Appellant’s pre-trial the instant case. (facially limita- statute of ap- (Tex.Cr.App.1978) corpus was an cation for writ of habeas tolled), Meyer, 357 and Ex tions not appellant to propriate vehicle for (Tex.Cr.App.1962) (facially S.W.2d 754 one but the First Court of dismissed the void; statutory provision another held held for want of valid); Matthews, (Tex.App . —Hous (Tex.Cr.App.1977) (facially appeals ton The court [1st Dist.] barred). showed appellant’s arguments held that were not of type that could be reviewed in a pleadings, proper pretrial Under as the corpus proceeding and that “must noted, appeals applicant court of must make complaints make regular appeal complaints regular her order and take an after trial on the merits.” at 154-155. Matthews, appeal after trial on the merits. granted appellant’s petition for discre supra, at 153. review, tionary pursuant to Texas Rule of 200(c)(2), Appellate Procedure to determine P.J., McCORMICK, joins. appeals whether the court of erred. CAMPBELL, Judge, dissenting. The Law question presented is whether a de-
fendant utilize *5 judgment provides The final rule invalidity assert tolling provision of a piecemeal appellate litigation review of the statute of I limitations. Because dis- generally inappropriate ap- and therefore agree with the Court’s affirmative answer to peals ordinarily only should be allowed from question, I dissent. rule, judgment. judgment a final “The final applied cases, to both civil and criminal
The Facts that, balance, reflects a determination on postponing appeal judgment until a final January In County grand 1991 a Harris protects reached both the interests of the appellant indicted Jean Matthews for litigants in a fair process and accessible and aggravated perjury, felony offense which judicial conserves resources.” LaFave W. & allegedly she committed in June 1981. See Israel, § J. Criminal 37.03(a). Procedure at 1138 pros- Tex.Penal Code Because a (2nd importance ed. Because ecution for perjury normally judgment orderly the final rule to the and by barred the statute of limitations three justice, efficient administration of it should years offense,1 after the date of the the in- subject exception only pro- where the dictment that the statute of limita- tection of the rights defendant’s substantive by appellant’s tions had been tolled absence judicial or the conservation of resources pretrial from the In state.2 for would be interlocutory better served re- corpus court, writ of habeas filed in the trial view. at 1140. contended that against her was limitations barred nonethe- In principles, line with these we have held less because the statute limitations’ corpus extraordinary that habeas is an reme provision argued was unconstitutional. She dy that should not be entertained where particular tolling provision that the violat- adequate remedy by appeal there is an after I, (due ed Texas Constitution article Clore, judgment. parte final Ex 690 S.W.2d clause), course of law and United States Con- 899, (Tex.Crim.App.1985); parte Ex (commerce I, 8,§ stitution article cl. 3 Groves, 888, (Tex.Crim.App. clause); IV, 2,§ article 1 (privileges cl. 1978). Thus, may pre a defendant not use clause); immunities and amendment XIV assert, corpus e.g., trial habeas his consti (due clause). process rights speedy tutional pro to a trial or due evidentiary Delbert, hearing appellant’s (Tex.
After an parte cess. Ex application, Ap- trial); the trial court denied relief. Crim.App.1979) (speedy Ex pellant Gonzales, appealed then the trial ruling, court’s (Tex.App.— 667 S.W.2d 12.01(5). 1. See Tex.Code Crim.Proc. art. cused is absent from the state shall not be com- puted period of limitation." 2. Texas Code of Criminal Procedure article 12.- 05(a) provides: “The time which the ac- ref'd) (due when, if, process). quately assert on she is pet. On Austin hand, may ultimately The constitutional use convicted. the other defendant rights by appellant will not be un- his constitutional asserted to assert jeopardy postponement of review un- respect to double dermined protections with bail, rely til not now if he were not allowed to do after conviction. She so, effectively upon protections would be un Ward and because those Robinson, effectively abrogated by were constitu- dermined. Ex 641 S.W.2d cases (double rely upon (Tex.Crim.App.1982) jeopar tional amendment. Nor Keller, judg- very exception 532- narrow to the final dy); (bail). by Meyer, (Tex.Crim.App.1980) exemplified ment rule because she invalidity penal does not assert of the to utilize We have also allowed defendants charged. statute under which she has been invalidity corpus to assert the Moreover, given problematic basis they very penal statutes under which exemplified by Meyer, I the rule would justification charged, although the were appellant’s extend it to circumstances. allowing exception judgment to the final this explicit made in- rule has never been judgment I of the court of would affirm the See, deed, might problematic. be considered majority’s appeals. Because of the refusal Boetscher, e.g., so, I do dissent. (Tex.Crim.App.1991); parte Meyer, 172 (1962).
Tex.Crim. McCORMICK, P.J., WHITE, J., join. apparently that sub- reasoned such cases jecting grounded a trial on an defendant to fundamentally penal
invalid statute was un-
just adequate remedy and that there was no
by appeal.
Finally, we have allowed defendants use indict ments that showed on their face that Sammy GILL, Appellant, charged offenses were barred limitations. (Tex. See Ex Crim.App.1978); Ex Texas, Appellee. STATE (Tex.Crim.App.1977). Our stated No. 650-93.
rationale in cases was that the indict they ments flawed that denied the were so Texas, Appeals of Court of Criminal trial court That rationale was En Banc. however, utterly destroyed, by the 1985 article amendment to Texas Constitution March 12(b), explicitly commands that which now ... presentment of an indictment “[t]he jurisdiction court with
court invests the term,
the cause.” Earlier this in State v.
Yount, (Tex.Crim.App.1993), that after the 1985 stated charges “an indictment which by limi of an offense barred
the commission jurisdiction upon the trial
tations still confers
court.”
Conclusion law, light present plain
In of our it is to me not use ade-
corpus to assert a claim