Ex parte Torres

• Decision Date: 18 March 1998
• Docket Number: No. 04-96-00161-CR,04-96-00161-CR
• Citation: 966 S.W.2d 723
• Parties: Ex parte Anthony John TORRES.
• Court: Texas Court of Appeals

Page 723

966 S.W.2d 723

Ex parte Anthony John TORRES.

No. 04-96-00161-CR.

Court of Appeals of Texas,

San Antonio.

March 18, 1998.

Joel Perez, San Antonio, for Appellant.

Robert Boyd Padgett, Asst. Crim. Dist. Atty., San Antonio, for Appellee.

Before HARDBERGER, C.J., and RICKHOFF, LPEZ, STONE, GREEN, DUNCAN and ANGELINI, JJ., en banc. ¹

OPINION ON MOTION FOR CONSIDERATION EN BANC AND ON

MOTION FOR REHEARING

GREEN, Justice.

The State has filed motions for rehearing and for consideration en banc in a case involving a delayed indictment. For the reasons stated in this opinion, we grant the motion for rehearing en banc and, having done so, deny the relief requested.

Jurisdiction

In its first point of error, the State challenges our jurisdiction to review this matter as a habeas corpus appeal. The State claims that the application for writ of habeas corpus did not allege one of the recognized exceptions to the general rule. Generally, a defendant may not seek pre-trial habeas corpus relief where there is an adequate remedy by appeal after final judgment. Ex parte Matthews, 873 S.W.2d 40, 42 (Tex.Crim.App.1994). Thus, we do not review pre-trial: speedy trial issues, see Ex parte Delbert, 582 S.W.2d 145 (Tex.Crim.App.1979); due process complaints, see Ex parte Gonzales, 667 S.W.2d 932 (Tex.App.--Austin 1984, pet. ref'd); or sufficiency of the complaint, information, or indictment claims, see Ex parte Dickerson, 549 S.W.2d 202 (Tex.Crim.App.1977) (holding on other issues superseded by statutory amendment in 1985).

A defendant may, however, resort to pretrial habeas corpus to challenge an indictment under other circumstances. For example, we have the authority to review a challenge to the tolling provision of article 12.05(b) (absence from state), see Ex parte Matthews, 873 S.W.2d 40, 43 (Tex.Crim.App.1994). We may also review a pre-trial appeal where the indictment, on its face, shows that the offense charged is barred by limitations. See Ex parte Dickerson, 549 S.W.2d at 203. A defendant may also raise by pre-trial habeas corpus appeal a challenge to the validity of the statute allegedly violated. See Ex parte Meyer, 172 Tex.Crim. 403, 357 S.W.2d 754, 755 (1962). Finally, a defendant may raise pre-trial his or her claims concerning double jeopardy, collateral estoppel, and bail. See Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App.1990); Ex parte Culver, 932 S.W.2d 207, 211 (Tex.App.--El Paso 1996, pet. ref'd).

A number of courts have given pre-trial review of delayed indictment cases recently. See, e.g., Ex parte Knight, 904 S.W.2d 722 (Tex.App.--Houston [1st Dist.] 1995, pet. ref'd); Norton v. State, 918 S.W.2d 25 (Tex.App.--Houston [14th Dist.] 1996, pet. granted); State v. Ybarra, 942 S.W.2d 35 (Tex.App.--Corpus Christi 1996, pet. granted). The 1985 amendments to the Texas Constitution and the code of criminal procedure were aimed at eliminating post-conviction attacks on indictments. See TEX. CONST. art. V, § 12(b); TEX.CODE CRIM. PROC. ANN. art. 1.14(b); Ex parte Matthews, 873 S.W.2d 40, 41-42. The Matthews opinion held that these amendments did not alter appellate jurisdiction relating to pre-trial applications for writ of habeas corpus. Id.

We see no distinction between the power to review indictments to construe a tolling provision or a limitations statute on the one hand and the timeliness of the indictment on the other. Timeliness is not a sufficiency issue. It is most closely akin to limitations issues. The Delbert opinion concerning a speedy trial issue is distinguishable because it was not a challenge to the indictment, rather it concerned the failure to bring the defendant to trial within 120 days under the former speedy trial act, since declared unconstitutional. See Meshell v. State, 739 S.W.2d 246 (Tex.Crim.App.1987). The State's first point of error is overruled.

The State also raises for the first time on rehearing a constitutional challenge to articles 32.01 and 28.061 of the code of criminal procedure. The State claims these articles are unconstitutional as a violation of the separation of powers doctrine because they "unduly interfere" with a prosecutor's exclusive function to prosecute cases.

Raising a Constitutional Issue on Rehearing

The State asserts that "the constitutionality of an enactment may be challenged for the first time on appeal" citing Rabb v. State, 730 S.W.2d 751 (Tex.Crim.App.1987). The State does not, however, present any analysis of this assertion or the applicability of Rabb to this case. Rabb stands for the proposition that a defendant who failed to object at trial may still challenge on appeal the constitutionality of a statute upon which his conviction is based. Rabb, 730 S.W.2d at 752. Every case citing to the Rabb opinion, however, concerns a defendant's constitutional challenge based upon a defendant's conviction. See Webb v. State, 899 S.W.2d 814, 818 (Tex.App.--Waco 1995, pet. ref'd) (Rabb rule not applied to untimely challenge of statute authorizing arrest because issue does not go to the judicial power of court to enter and enforce judgment). The case has not been used to permit an untimely constitutional challenge by the State.

The court of criminal appeals has since ruled, however, that when a party raises a new ground for the first time on motion for rehearing, the decision of whether to consider that new matter is left to the sound discretion of the appellate court. See Rochelle v. State, 791 S.W.2d 121, 124 (Tex.Crim.App.1990). There the State had raised an art. 1.14(b) waiver argument for the first time on rehearing after the court of appeals found an indictment fatally defective, reversed the conviction, and dismissed the indictment. See id. at 122. The court of criminal appeals analyzed portions of former appellate procedure rule 74 and concluded that the purpose of rule 74(p) was that

all points of error sought to be reviewed and all replies thereto are to be included in the original brief. Supplemented or amended briefs bringing new matters to the appellate court may be filed later, but only "as justice requires" or "in the interest of justice" and under reasonable terms imposed by the court. The implication is that such briefs may be filed and considered only with leave of the appellate court. The idea that a party may force a new issue on an appellate court after briefs have been filed is foreign to the rules, although constitutional restraints such as due process may so require in a given case. The same is true for compelling matters that rise to the level of "in the interest of justice." Short of those situations, the decision whether to consider new matters raised in a supplemented or amended brief should be left to the sound discretion of the appellate court.... Here, of course we are dealing with a motion for rehearing, as opposed to a brief on original submission, but we are guided by these principles which are meant to result in a presentation to the court of appeals that is both orderly and timely.

Id. at 124 (citations omitted). The court further stated:

In the absence of any indication to the contrary, such as a written opinion on rehearing, we will assume that the court of appeals declined, in its discretion, to consider the new matter. Thus, overruling of such a motion for rehearing, without written opinion, will not be considered a ruling on an issue "necessary to final disposition of the appeal" and thus will not be a part of the decision of the court of appeals upon which we will base review. Rule 200(a). To hold otherwise would fly in the face of the heretofore stated policy of the rules that all matters be raised in the original brief. It would also force the appellate courts to issue written opinions on rehearing pursuant to Rule 90(a). Moreover, to hold to the contrary would encourage piecemeal appellate litigation in the courts of appeals, which is clearly not the object sought to be attained by the promulgation of the rules.

Id. at 124-25. In Rochelle, the high court declined to hear the merits of the State's argument because it found that art. 1.14 had become law more than a year prior to the filing of the State's brief in the court of appeals and that no significant decisions interpreting the statute had been rendered nor any amendments passed which would compel the court to exercise its discretion on rehearing. Thus, the State failed to preserve the alleged error for review. Id. at 125. The same reasoning might be applied here since the amendment to art. 28.061 which upgraded a dismissed indictment under art. 32.01 to be one with prejudice has been on the books since 1987.

In Boyle v. State, the State raised non-constitutional issues, i.e., third party consent to the search and lack of standing to assail the search, for the first time on a motion for rehearing to the court of criminal appeals. This time the court of criminal appeals was presented with the issue on rehearing from a direct appeal of a capital murder conviction. The court exercised its discretion to grant the motion for rehearing. Boyle v. State, 820 S.W.2d 122, 141 (Tex.Crim.App.1989) (citing Rochelle at 124, 125), cert. denied, 503 U.S. 921, 112 S.Ct. 1297, 117 L.Ed.2d 520 (1992). Thus, under Rochelle, this court may exercise its discretion to hear the issue whether or not the new issue raises constitutional challenges.

Separation of Powers Analysis

The Texas Constitution divides the powers of state government into "three distinct departments"--legislative, executive, and judicial--and members of one department may not properly exercise the authority of the other unless that power is grounded in a constitutional provision. See TEX. CONST. art. II, § 1.

A review of the separation of powers analysis is a two-step process: (1) Does the statute unduly interfere with the prosecutor's exclusive prosecutorial function of preparing a case for prosecution? and if so, (2) Is the enactment authorized by a constitutional provision? TEX. CONST. art....