Jesus Anselmo Hernandez v. State ( 1998 )

No. 04-97-00956-CR

Jesus Anselmo HERNANDEZ, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 96-CR-5964 Honorable Sharon MacRae, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: July 8, 1998

AFFIRMED

Jesus Anselmo Hernandez appeals his conviction of aggravated assault with a deadly weapon. In a single point of error, Hernandez argues the evidence is legally insufficient to support his conviction because the State failed to prove beyond a reasonable doubt that its prosecution was not barred by the applicable statute of limitations. We affirm.

The facts pertinent to Hernandez's claim relate to the progression of his prosecution. At trial, the State produced a custodian of court records for Bexar County who testified that on or about August 27, 1992, a grand jury returned an indictment against Hernandez in the 290th Judicial District Court. The indictment alleged that Hernandez committed aggravated assault with a deadly weapon on April 6, 1992. For some reason not revealed by the record, the original indictment against Hernandez was dismissed on December 3, 1996. He was subsequently re-indicted in the same district court on December 10, 1996. The trial court instructed the jury not to include the time during the pendency of the indictment in its statute of limitations calculation but to acquit Hernandez if it found the State failed to timely prosecute him. The jury returned a guilty verdict and sentenced Hernandez to ten years confinement.

The statute of limitations in this case is three years. Tex. Code Crim. Proc. Ann. art. 12.01(6) (Vernon Supp. 1998). Furthermore, the statute of limitations is tolled during the pendency of an indictment so long as the second indictment is brought under the same penal statute. See Tex. Code Crim. Proc. Ann. art. 12.05(b) (Vernon 1977); Ex parte Slavin, 554 S.W.2d 691 (Tex. Crim. App. 1977). Therefore, the limitations period in Hernandez's case was tolled from August 27, 1992 to December 3, 1996. As a result, the time period between the date of the alleged offense and the date the first indictment was returned, added to the time period between the dismissal of the first indictment and re-indictment, does not exceed three years. Viewing this evidence in the light most favorable to the verdict, we hold that the State produced sufficient evidence for a rational trier of fact to have found beyond a reasonable doubt that its prosecution was timely. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

Accordingly, we overrule Hernandez's sole point of error and affirm the trial court's judgment.

Paul W. Green, Justice

DO NOT PUBLISH

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