Ex parte Ward

• Decision Date: 18 January 1978
• Docket Number: No. 56017,56017
• Citation: 560 S.W.2d 660
• Parties: Ex parte Scottie Gene WARD. . En Banc
• Court: Texas Court of Criminal Appeals

Page 660

560 S.W.2d 660

Ex parte Scottie Gene WARD.

No. 56017.

Court of Criminal Appeals of Texas.

En Banc.

Jan. 18, 1978.

Steve Carlton, Orange, for appellant.

EN BANC.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order of the trial court entered in a habeas corpus proceeding.

The appellant is charged by indictment with the crime of aggravated rape. The habeas corpus application in the trial court sought the discharge of the appellant on the basis that the indictment was void, and also sought reduction of appellant's bail pending trial. The trial court granted the relief sought in respect to bail and lowered appellant's bond to $15,000. The trial court denied all relief on the issue of the void indictment. Appellant only appeals from the denial of relief on the issue of the indictment.

Ordinarily, when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus relief is not available prior to trial to test the sufficiency of the complaint, information or indictment. Ex parte Meers, 129 Tex.Cr.R 465, 88 S.W.2d 100; Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84. This Court will, however, take note of the fact that there is no pleading charging an offense in an appeal from a habeas corpus hearing.

In Ex parte Dickerson, Tex.Cr.App., 549 S.W.2d 202, appeal was taken from an adverse ruling in a habeas corpus hearing relative to bail. This Court took notice of the fact that the indictment showed on its face that it was barred by limitation and dismissed prosecution under the indictment, setting forth the following rule:

". . . if the pleading, on its face, shows that the offense charged is barred by limitations the complaint, information, or indictment is so fundamentally defective that the trial court does not have jurisdiction and habeas corpus relief should be granted."

The rape with which appellant is charged was allegedly committed on March 14, 1974. The indictment in this case was presented on July 6, 1977, over three years and three months from the date of the alleged rape.

At the time of the alleged incident, the period of limitations was set by Art. 12.01, V.A.C.C.P., which provided, in pertinent part: ". . . felony indictments may be presented within these limits, and not afterward: (4) one year from the date of the commission of the offense: any felony in Penal Code Chapter 21 (Sexual Offense)." ¹ The indictment in the instant case, introduced into evidence by the State, was clearly presented beyond the time allowed by the statute.

In an apparent attempt to overcome the limitations barrier, the indictment included the following averment:

"And the grand jurors aforesaid do further present that on or about the 14th day of March, 1974, a complaint against the said Scottie Gene Ward, at the time known only as an unknown white male with the nickname Cherokee and being described as approximately 20 years old, 5'11 , 165 to 180 pounds with brown hair, charging him with the same offense charged in this indictment was duly filed in the Justice Court of Precinct No. One of Orange County, Texas, and thereafter said complaint was pending in said court at the time of the presentment of this indictment." ²

This allegation was included in the indictment in an effort to bring it within the provisions of Art. 12.05, V.A.C.C.P., which provides, in pertinent part:

"(b) The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.

(c) The term 'during the pendency,' as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason."

This case presents the issue of whether a complaint, filed in a justice court, will toll the running of the statute of limitations in a felony case. This question appears to be one of first impression. We hold that such a complaint does not toll the running of the period of limitations.

Article 12.05, supra, provides that the period of limitations will be tolled only after the "indictment, information, or complaint is filed in a court of competent jurisdiction . . . ." In Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248, 255, this Court stated: "A court of competent jurisdiction means a court that has jurisdiction of the offense."

In Hultin, it was further stated that jurisdiction "includes the three essentials necessary to the jurisdiction of a court; the court must have authority over the person and the subject matter, and it must have power to enter the particular judgment rendered." See 16 Tex.Jur.2d, Criminal Law, Sec. 200. In 15 Tex.Jur.2d, Courts, Sec. 45, it is written: "Jurisdiction is the power to hear and determine issues of law and fact involved in a case, and to render a judgment thereon, after deciding the existence or non-existence of material facts and applying the law to the findings."

V.T.C.A., Penal Code, Sec. 21.03, classifies aggravated rape as a felony of the first degree. Article 5, Sec. 8, Vernon's Constitution of Texas Annotated, provides, in pertinent part: "The District Court shall have original jurisdiction in all criminal cases of the grade of felony . . . ." This provision is also incorporated in Art. 4.05, V.A.C.C.P. Article 5, Sec. 19, Vernon's Constitution of Texas Annotated, provides, in pertinent part: "Justices of the peace shall have jurisdiction in criminal matters of all cases where the penalty or fine to be imposed by law may not be more than two hundred dollars . . . ." This provision is also incorporated in Art. 4.11, V.A.C.C.P.

While the justice court had authority to take a complaint and issue a warrant of arrest, we find that such court did not have jurisdiction of the felony offense charged herein so as to come within the ambit of Art. 12.05, supra. To hold to the contrary would be to allow a "credible person" to file a complaint in the justice court charging an accused with a felony offense without inquiry being made about the nature of the knowledge upon which an affiant bases his factual statements, and thereby toll the statute of limitations forever. See Art. 15.05, V.A.C.C.P.; Wells v. State, Tex.Cr.App., 516 S.W.2d 663.

We hold that the indictment shows on its face that it is barred by limitation. The indictment is thus void and provides the trial court with no jurisdiction over the appellant. ³

Habeas corpus relief is granted, and the prosecution under this indictment is ordered dismissed.

DOUGLAS, Judge, dissenting.

The question presented, in essence, is whether a court of "competent jurisdiction", as this term is used in Article 12.05, V.A.C.C.P., refers only to a court which has the power to enter a judgment in a particular case, or whether it also refers to a court which has the authority at the time of acting to do a particular act. The majority errs in adopting the narrower construction of the term and, as a result, incorrectly holds that a complaint filed in a justice court will not toll the running of the statute of limitations in a felony case.

21 C.J.S. Courts § 22 (1940), states, in part:

"The term 'competent jurisdiction' is susceptible of two meanings; it may signify that the court must acquire and exercise jurisdiction competent to grant an application, through and by reason of a strict conformity to the requirements of a statute, or it may signify jurisdiction over the subject matter, a sort of authority in the abstract, to hear and determine a case. . . .

"A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act ; . . ." (Italics supplied).

Black, Law Dictionary (4th ed. 1968), states that the term "competent authority," as applied to courts, "imports jurisdiction and due legal authority to deal with the particular matter in question. . . ."

Article 15.03, V.A.C.C.P., authorizes a magistrate to receive a complaint and issue a warrant of arrest, and Article 2.09, V.A.C.C.P., provides that the justices of the peace are magistrates within the meaning of the statute. Thus, it is beyond dispute that the justice court in the present case had the power and authority to act on the matter before it the complaint charging appellant with rape although it had no power to determine the issues of law and fact in the case or to render a judgment based upon such a determination.

The opinion in State v. Hemminger, 210 Kan. 587, 502 P.2d 791 (1972), is instructive. In that case, defendant committed first degree robbery on September 20, 1964. A complaint was verified and filed in the court of common pleas at Wichita, Kansas, on November 4, 1964. A warrant of arrest was issued on that date but never served.

Defendant was incarcerated in the State of Missouri from the date the original warrant was issued until he was extradited in 1969. An amended complaint was filed and an amended warrant was issued on April 29, 1969, and defendant was bound over for trial in the district court on May 28, 1969. He was tried and convicted in 1970.

On appeal, defendant contended that the filing of the original complaint and the issuance of the original warrant did not constitute commencement of prosecution within the meaning of the Kansas statute. He thus argued that the prosecution was barred by the two year statute of limitations applying to robberies.

The Supreme Court of Kansas observed at the outset that K.S.A. 62-602 required that complaints in criminal cases be made to a magistrate and that such magistrate must determine whether a warrant should issue. The court then determined that the court of common pleas at Wichita had the same jurisdiction in criminal cases as was then given to justices of the peace and that consequently such court was a magistrate court within the contemplation of the statute.

K.S.A. 62-505 provided...