Jackson v. State
489 S.W.2d 565
Tex. Crim. App.
1973
Check Treatment

*1 JACKSON, Appellant, John Gerard Texas, Appellee. STATE of

The 45408. No. Appeals of Texas. Court Criminal Nov. Rehearing 24, 1973. On Jan. Law, Dallas, appellant. B. for

Howard Henry Wade, Atty., Mike Mc- Dist. G. Collum, Atty., Dallas, and Asst. Dist. Jim Vollers, Atty., D. Robert Hut- State's A. Austin, tash, Atty., Asst. State’s State.

OPINION ONION, Judge. Presiding springs out appeal here involved

The possession of marihuana a conviction five assessed at punishment was probated. years, trial, trial appellant waived At his guilty plea of before jury and entered stip- evidence was the court. The State’s as to his testified ulated and probation. eligibility for appeal initial contention advanced admitting into erred in court is that which marihuana evidence the obtained as result contends was notes that illegal and seizure. He search his subject entered of testi- the introduction objection, as to *2 vehicle, operation of his an of ing the found. relating to the marihuana mony violation ficer sees evidence of a criminal was overruled. objection The view, in some other manner open in or 16, reflects that stipulation The acquires probable a more serious cause on m., City Police 1970, p. Dallas 12:30 about may for that charge, he arrest observed the Etley Merten and Officers conduct an addition and incident thereto pull- Volkswagen a 1970 appellant operating physical al search for evidence. expired bearing an trailer ing a homemade specific This even if statement is true no appel- stopped the tag. They license of fact of the second arrest is made. appellant’s and, standing beside lant while ” Taylor v. S.W. about said him conversing with vehicle (Em 2d (Tex.Cr.App.1967). 403 at 407 through Etley observed tag, Officer license phasis supplied.) cigarette of the vehicle rear window the circumstanc leafy green substance conclude that under We wrapping paper, marihuana, admitting seeds testi es the court did not err to be appeared which Legall mony concerning seeds. the marihuana. See to be marihuana appeared which plain (Tex.Cr.App. “in observing this material v. 463 S.W.2d 731 After car, find- view,” also Article 1971). searched the See Vernon’s the officers in the rear ash ing cigarette butts Ann.C.C.P. three leafy green tray quantity and a small Next, error, grounds appellant, two stip- The the rear seat. substance behind sufficiency challenges the of the evidence. custody that a chain of ulation also showed forth, already From the set and that of material was established grounds clear that such of error are without ma- testimony be that the would chemist’s merit. him marihuana. terial submitted to judgment The is affirmed. question does not stop arrest officers to right APPELLANT’S OPINION ON expired li the use of an REHEARING MOTION FOR circumstances, Thus, tag. under the cense position in a he Etley was where Officer ONION, Presiding Judge. established right had a to be. It is well ap- rehearing the time on For the first which that an officer seize contraband is void pellant “The indictment contends: plain sight open or view if he he sees California, charges an offense that it for the reason lawfully he Ker is. hundred’ 726; nine 23, 1623, year in the ‘one thousand 10 L.Ed.2d 374 U.S. S.Ct. of Limi- beyond Lee, the Statute which date 274 U.S. 47 S.Ct. United States v. States, prove to said date.” tations and the facts fail 1202; Abel v. 71 L.Ed. United 668; 683, 4 80 S.Ct. L.Ed.2d U.S. that this unas- appellant’s position It is States, 192, 48 Marron v. United 275 U.S. funda- presents of error signed ground 231; 72 L.Ed. Lewis v. S.Ct. “in in- requiring error review mental (Tex.Cr.App. 1969); S.W.2d 351 Jackson Article 40.09 See justice.” terest § (Tex.Cr.App. 449 S.W.2d 279 Ann.C.C.P. Vernon’s 1970). indictment, parts, the Omitting the formal Further, grand jury alleges the part, in and to present stop oaths do upon or has their a bona fide arrest “[o]nce Dallas No. 5 of offense, po District been made a traffic Term, A.D.1970, of April any County, at lice make an additional arrest for can one Gerard court that unexpectedly discovered said other Jackson in the day May investigation. the 16th on or about during the course of the Nine Thousand Lord One If, regard year of our questioning a motorist while - County ment “one thousand nine hundred Hundred and aforesaid, and-,” unlaw- in the instant then and there State fully possess drug, mari- narcotic wit: indictment as the date of the commission ” huana the offense shows the offense be bar- *3 red limitation. 21.02, (Req- Vernon’s Ann.C.C.P.

Article part: provides, Indictment), uisites of an allegation fatal to in Such is the State, Dixon v. dictment. 161 Tex.Cr.R. suf- be deemed “An indictment shall 626, 868, (1955); Bayless 279 S.W.2d 869 following requisites: has the ficient if it 1, 136 Tex.Cr.R. 123 S.W.2d 354 (1939). The fact that error the or omis sion is clerical one is immaterial. See be some The time mentioned must 28, 21.02, supra, Article n. and cases there presentment to date anterior the indictment, cited. the so not remote is prosecution of offense barred the affirming The order the conviction set is

limitation. aside, appellant’s rehearing the for motion granted, judgment and the is reversed and the cause ordered dismissed. Thus, subject the offense is “[w]henever limitation, or information to an indictment that it committed within must show was ON MOTION APPELLANT’S ” period . 30

the of limitation. . . REHEARING FOR Indictment and Information § Tex.Jur.2d 36, p. 602. ODOM, Judge (Dissenting). the as the date of “If the time, the motion rehear- For first on the of- the shows of commission appellant ing, contends: limitation, the then barred fense be to for the reason “The indictment void information, indictment, complaint so or year charges an that it Ann.P.C., 2d bad.” 1 Branch’s alleging is nine which date hundred’ ‘one thousand Ed., 456, p. 456. § Limitations, and beyond of Statute prove date.” the facts fail to said saved an indictment Such of limita only tolling if the statute factors reads, as part, follows: The indictment Tex. alleged. Donald v. 165 tions are “ . 252, Parr . Grand (1956). Cr.R. 360 S.W.2d Jurors present do itpon their oaths (Tex.Cr.App.1957). 307 S.W.2d 94 5, of District No. The indictment in the instant case was Term, April A.D. County, at the Dallas presented and the statute on June Court that one Gerard of said of for the offense of unlawful limitations May day about 16th on or Jackson years. possession of marihuana is 3 See Thousand year our Lord in the One Article Vernon’s Ann.C.C.P. County and-in Nine Hundred indictment the offense occurred aforesaid, there did then and and State year Thousand Nine “One drug, unlawfully possess a narcotic tolling and -.” No factors Hundred ” marihuana, wit: alleged. were statute limitations True, digits year two the last 62 Tex.Cr.R.

As in Bradford v. from offense were omitted date of the indict- (1911), where the S.W. However, and, trial; the indictment. there is no doubt ment in his motion for (S) new question that the omission error. appeal clerical not the indictment on rehearing. until his motion for although appel- The record reflects that plead guilty, agreed partial lant he to a Misdemeanor cases where informa prepared by which was counsel faulty complaint prepared tion is from a appellant, signed by prosecutor, distinguishable. example, For in Sand counsel for him- State, Tex.Cr.App., lin v. It self. was admitted into evidence and complaint alleged the date of the of stated the date of the offense to be “on or fense to have been on the . 4th day May, about approxi- the 16th at day of A.D.19—.” The informa October *4 mately p. 12:30 m.” tion, prepared from com which was the plaint, alleged the date of the offense to prosecu- the The record also reflects that “ day have been the . . . 4th of October following tor read the into the A.D.1964.” The conviction was reversed objection: record without complaint for the reason that the Merten support “If Officer and Officer insufficient M. the information. they Etley testify E.C. were called to in The interest of the accused such cases testify . could and would as the interest of the ac- not the same they stopped that vehicle the violation at bar. cused the case a of state law . the exact being May 16th of 1970. placed on the statutory A limitation is prosecu-

prosecutor’s authority to initiate limitation in a misdemeanor tion. That “If E. Et- Officers M. Merten and C. J. requirement that by the case is effectuated recalled, ley would they were could and presented shall be until “(n)o information testimony testify prior that all of their by been made some credible affidavit has testimony agreed stipula- and the the person charging the defendant with person driving of tion automobile 21.22, It offense.” Article V.A.C.C.P. where this was found at 12:30 marihuana then, protect in order to the interest follows p. day May, m. on the 16th of 1970 placed of the accused the limitation on a prosecutor’s authority, the information prepared Thus it is from the record that the which is must com- clear track the 16, Indeed, plaint. long date of the and offense was it has been the law prosecution by complaint is not barred the Statute that the affidavit and 12.04, only part of Article should form not of Limitations. V.A.C.C.P. and become important the information but a most Although omissions and clerical errors it,” part fundamental and: condoned, certainly I not would particular reverse under the of this “If upon facts the information must be based affidavit, case (1) object where: did not then the stated in 27.02, pursuant to the indictment the information must Article be characterized 3, V.A.C.C.P.; correspond reading Section with that as (2) waived stated indictment; stipulated Any construction, affidavit. (3) to the other appears us, date of complained to would be (the senseless.” Davis ; State, date) 2 (4) Tex.App. made no v. mention of the indict- 184. See, g., Tex.Cr.App., State, State,

1. e. Sandlin v. Herron v. Tex.Cr.R. 537; Taylor 225; 386 S.W.2d McLaren v. S.W.2d v. Tex.Cr. 141; App., 1015; Tex.Cr.R. 320 S.W.2d Suzu 50 S.W. and Collins v. ki v. State, Tex.Cr.App., 744; Tex.App. 280 S.W.2d 37. prosecution begun com- “Where information, allegation as plaint ARREVALO, Appellant, Obeline of the commission to the date plead- be same in both offense must Texas, Appellee. The STATE respect in this will ings, and variance No. 45629. State, Tex.Cr.App., Taylor fatal.” 1015. S.W. Appeals Texas. authority prosecutor’s on the The limitation Jan. 1973. felony in a case prosecution to initiate an in requirement that effectuated jury.2 aby grand

dictment be returned V.A.C.C.P.; Krarup, parte Ex Article 173; Norton v. Tex.Cr.App., 422 S.W.2d 610; Tex.Cr.R. State, Tex.Civ.App., 418 S.W.2d Solis v. *5 alleged offense That the of the (Article of the indictment part made required is for two reasons: V.A.C.C.P.) (1) prosecution of the insure that the limitation, alleged offense is barred put the accused to insure that (2) charged. on Those notice of cases reversed this court for the reason alleged the date offense set of the forth in the information not conform complaint to the date inapplicable to the instant case. where, a by reason hold that

I would error, part of the date clerical the indict- is omitted from ment, per require se does not its omission And is clear from reversal. prosecution as a that the record whole limitation, is also and it not barred put was in fact

clear that the accused notice as to the offense for which he charged, not rendered then conviction is See, by reason of the

infirm omission. g., Hodge v. 164 Tex.Cr.R. e. Opinion). 138 (Dissenting To the extent that Bradford v. 119, and other Tex.Cr.R. 138 S.W. view, I cases are inconsistent with this would overrule them.

I dissent. Tex.Cr.App., 1.141, V.A.C.C.P.; King An indictment be waived. Article S.W.2d 43.