Ex Parte Smith

• Decision Date: 19 October 2005
• Docket Number: No. PD-0616-04.,PD-0616-04.
• Parties: Ex Parte Jason Christopher SMITH.
• Court: Texas Supreme Court

178 S.W.3d 797

Ex Parte Jason Christopher SMITH.

No. PD-0616-04.

Court of Criminal Appeals of Texas.

October 19, 2005.

Rehearing Denied December 7, 2005.

COPYRIGHT MATERIAL OMITTED

H.F. Rick Hagen, Denton, for appellant.

Kathleen A. Walsh, Asst. D.A., Denton, Matthew Paul, State's Attorney, Austin, for State.

OPINION

PER CURIAM.

We granted the State's petition in this case to determine whether a defendant may complain about the sufficiency of a tolling allegation in a petition for a pretrial writ of habeas corpus.¹ We decide that he may not. When a charging instrument shows on its face that prosecution is barred by the statute of limitations and that pleading is not reparable, a defendant may seek relief from a time-barred prosecution by a pretrial petition for a writ of habeas corpus. If, on the other hand, the information or indictment does contain a tolling allegation, any errors, omissions, or defects in that tolling language must be raised in a pretrial motion to dismiss or they are waived. These reparable defects cannot be raised by a pretrial petition for a writ of habeas corpus and are not subject to interlocutory appeal. Therefore, we reverse the court of appeals which had held otherwise² and remand the case to the trial court.

I.

On July 30, 1998, appellant was indicted for the aggravated assault of Shanna Whitley. A jury found him guilty of the lesser-included offense of misdemeanor assault, but the court of appeals reversed that conviction and remanded the case for retrial after finding that certain evidence had been improperly excluded.³ The court of appeals noted in its opinion that appellant could not be retried for aggravated assault.

The State later filed an information in county court charging appellant with misdemeanor assault. That pleading read

NOW COMES, Bruce Isaacks, Criminal District Attorney of the County of Denton of the State of Texas, and in behalf of the State of Texas, presents in the County Criminal Court of Denton County, Texas, at the January Term, 2003, of said Court, that JASON CHRISTOPHER SMITH, who is hereinafter styled defendant, on or about the 1st day of June, A.D., 1998, and before the making and filing of this Information, in the County of Denton of the State of Texas, did then and there intentionally, knowingly, or recklessly, cause bodily injury to Shanna Whitley, by biting and sucking Shanna Whitley on the breast;

AND Bruce Isaacks, Criminal District Attorney of the County of Denton of the State of Texas, does further present in and to said Court that on or about the 30th day of July, 1998, the Grand Jury of the County of Denton, Texas returned an indictment against the said JASON CHRISTOPHER SMITH charging him with the offense of aggravated assault and said indictment was pending in the 362nd Judicial District Court of Denton County, Texas, until March 21, 2002, to-wit: on the 18th day of May, 2000, a Jury convicted the said JASON CHRISTOPHER SMITH of the lesser included offense of misdemeanor assault and on the 22nd day of May, 2000; judgment was entered, and thereafter the conviction was properly appealed to the Court of Appeals, Second District of Texas, and thereafter on the 10th day of January, 2002, the Court of Appeals reversed and remanded the judgment for a new trial and thereafter on the 21st day of March, 2002, the Mandate of the Court of Appeals issued[.]

Appellant filed a petition for a writ of habeas corpus, claiming, inter alia, that "the new charges are barred by limitations."⁴ Appellant's written motion stated,

The second paragraph of the information purports to allege a tolling provision. The instant prosecution is barred by the statute of limitations because this prosecution alleged an offense under a separate penal code provision, and alleges an entirely new offense, different from the one alleged in the indictment. The statute of limitations for a misdemeanor is two years from the date the offense is alleged to have been committed and not afterward.

The trial court conducted a hearing and granted relief as to Smith's contention that the addition of the manner and means of "sucking" was barred by limitations. The phrase "sucking" was ordered stricken from the information, but otherwise the trial court denied relief. Appellant filed an interlocutory appeal of the trial court's denial of his habeas corpus claims.

On appeal, appellant claimed that the tolling provision was insufficient for two reasons: "First, the tolling provision fails to contain an allegation that the indictment charged applicant with the same offense. Second, the tolling provision is invalid because it alleges a different statutory offense." The court of appeals noted that, in a supplemental brief, appellant conceded that this Court had just decided against his position on the second reason.⁵ However, it held that the tolling paragraph — in failing to contain a sufficient allegation that the prior indictment charged appellant with the same offense — was not specific enough to toll the statute of limitations, and it dismissed the information.⁶ The court of appeals rejected the State's argument that appellant failed to raise this specificity argument in the trial court.⁷

II.

A defendant may use a pretrial writ of habeas corpus only in very limited circumstances.⁸ First, the accused may challenge the State's power to restrain him at all.⁹ Second, the accused may challenge the manner of his pretrial restraint, i.e., the denial of bail or conditions attached to bail.¹⁰ Third, the accused may raise certain issues which, if meritorious, would bar prosecution or conviction.¹¹

Although there is sometimes little difference between a pretrial writ of habeas corpus and a pretrial motion as a vehicle to raise legal issues in the trial court, there is a vast difference between the two in terms of appellate rights. The denial of relief on a pretrial writ of habeas corpus may be appealed immediately, but the denial of a pretrial motion may be appealed only after conviction and sentencing.¹² Because the denial of habeas corpus relief, based on fundamental constitutional principles, permits an interlocutory appeal, appellate courts are careful to ensure that a pretrial writ is not misused "to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage."¹³ A pretrial writ of habeas corpus generally may not be used to test the sufficiency of a complaint, information, or indictment.¹⁴ A pretrial writ of habeas corpus may be used, however, to challenge the jurisdiction of the court if the face of the indictment shows that any prosecution is barred by the statute of limitations.¹⁵ This is because the defect is incurable and irreparable. Limitations is an absolute bar to prosecution.¹⁶ There is no point in wasting scarce judicial and societal resources or putting the defendant to great expense, inconvenience, and anxiety if the ultimate result is never in question.¹⁷ Thus, in Ex parte Dickerson,¹⁸ this Court held that when the face of the pleading shows that the offense charged is barred by limitations, that pleading "is so fundamentally defective that the trial court does not have jurisdiction and habeas relief should be granted."¹⁹

There are, however, exceptions to the statute of limitations, one of which is that "[t]he time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation."²⁰ That is, the statute of limitations is tolled for any time period in which the defendant was under indictment for "the same conduct, same act, or same transaction."²¹ As we recently explained,

[a]llowing the prior indictment to toll the statute of limitations would not defeat the purposes of the statute of limitations if the prior indictment gives adequate notice of the substance of the subsequent indictment. If the defendant has adequate notice of a charge, he can preserve those facts that are essential to his defense.²²

Thus, if the State's pleading includes a "tolling paragraph," "explanatory averments," or even "innuendo allegations,"²³ this suffices to show that the charged offense is not, at least on the face of the indictment, barred by limitations.²⁴

Of course, a tolling paragraph may neglect to include names, dates, manner and means, and so forth. A tolling paragraph need not be alleged with the same degree of particularity as we would expect of an allegation of the charged offense,²⁵ but any purported defects of form and substance in either the charge or the tolling paragraph relate to notice and must be brought to the trial court's attention before trial or they are waived.²⁶ These specificity defects are reparable.²⁷ They do not destroy a trial court's power or jurisdiction to proceed, and they may not be raised by means of a pretrial writ of habeas corpus.²⁸ Instead, they may and must be raised in a motion to quash or motion to dismiss the pleading.

In enacting article 1.14(b), the Texas Legislature statutorily overruled a long line of cases reversing convictions for "fundamentally defective" pleadings when, in fact, the pleading could have been repaired had the defect been brought to the trial court's attention before trial.²⁹ Thus, "an indictment (or information) is still an indictment (or information), at least as contemplated by Art. V, § 12, though it be flawed by matters of substance such as the absence of an element."³⁰

The same reasoning and result that applies to flawed charges under article 1.14(b) also applies to tolling provisions set out in an indictment or information.³¹ Purported defects in a tolling paragraph are forfeited unless raised in a pretrial motion to quash or dismiss,³² and such defects may not be raised in a pretrial writ because they do not deprive the trial court of its jurisdiction. Only when an indictment shows on its face that prosecution is absolutely barred by the statute of limitations and that pleading is not...