Javier Rodriguez v. State ( 2003 )

Becker v. State COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

)

JAVIER RODRIGUEZ,

) No. 08-02-00342-CR )

Appellant,

) Appeal from )

v.

) 143rd District Court )

THE STATE OF TEXAS,

) of Ward County, Texas )

Appellee.

) (TC# 01-04-4382-CRW ⁽¹⁾)

O P I N I O N

Javier Rodriguez appeals from his conviction for possession of more than fifty but less than 2,000 pounds of marihuana. A jury found Appellant guilty and assessed his punishment at imprisonment for a term of twelve years and a fine of $5,000. The sole issue on appeal is whether the information tolled the applicable statute of limitations. We affirm.

FACTUAL SUMMARY

On March 24, 1998, Deputy Robert Martin stopped a GMC Suburban driven by Appellant after observing him driving off of the shoulder of Interstate 20 before returning to the main portion of the roadway. Approaching Appellant's Suburban, Martin noticed a distinct odor of marihuana emanating from inside the vehicle and instructed Appellant to step outside of it. Appellant did not have a driver's license. As Martin returned to the vehicle to determine whether anyone else was inside, he saw in plain view several large bundles of what appeared to be marihuana. He opened the back cargo doors and found fifteen large bundles of marihuana. Martin also noticed that one of the bundles had split open and loose marihuana had spread throughout the vehicle, as Appellant had been driving with the window down. Martin immediately arrested Appellant. Subsequent analysis showed that Appellant had more than 408 pounds of marihuana inside of the Suburban. Appellant filed an application for writ of habeas corpus to reduce his bond from $75,000, and on March 27, 1998, he was released on a $35,000 bond. ⁽²⁾ The State also filed a forfeiture proceeding pertaining to the Suburban.

The prosecutor and defense counsel, Robert V. Garcia, Jr., reached separate agreements pertaining to the criminal case and the forfeiture case. ⁽³⁾ Both proceedings were set for hearing on several occasions but were continued at the request of defense counsel due to scheduling conflicts. On November 6, 1998, the trial court entered an agreed final judgment forfeiting the Suburban. On that same date, the State filed an information charging Appellant with possession of more than fifty but less than 2,000 pounds of marihuana. ⁽⁴⁾ According to the prosecutor, he filed the information to facilitate a guilty plea. That plea did not immediately occur and on November 30, 1998, Mr. Garcia filed a motion for continuance of a hearing scheduled in the criminal case for December 4, 1998, because Appellant was incarcerated in Ojinaga, Chihuahua, Mexico and awaiting trial.

In early March 2001, a different attorney purporting to represent Appellant, Antonio Rodriguez, contacted the district attorney and advised him that Appellant wanted to turn himself into the authorities. Rodriguez discussed a possible plea agreement in exchange for Appellant's voluntary surrender. The district attorney advised counsel that he could not make any deals until Appellant surrendered but he told Rodriguez that the original plea offer would be considered and he informed him of two dates in March when the guilty plea could take place. Once again, a guilty plea did not occur and the State subsequently presented the case to a grand jury which returned a true bill on April 26, 2001.

On June 3, 2002, Appellant entered the United States from Mexico at the port of entry in Presidio, Texas where he was arrested. The following day, Appellant filed in the trial court an application for pretrial writ of habeas corpus, alleging that more than three years had elapsed between the date of the commission of the offense and the indictment, and therefore, the prosecution was barred by limitations. In its response to the writ application, the State alleged that: (1) limitations is a defense which may not be raised by an application for writ of habeas corpus; and (2) the time during which the accused is absent from the state is not computed in the period of limitation. At about the same time, the State also filed a motion seeking leave of court to amend the indictment to allege that Appellant had been absent from the State from November 30, 1998 until June 3, 2002, and the State had filed an information charging Appellant with the same offense. ⁽⁵⁾ On June 11, 2002, the trial court signed an order amending the indictment as requested by the State. On that same date, the trial court entered an order that it would treat Appellant's application for writ of habeas corpus as a motion to dismiss the indictment. On June 30, 2002, Appellant filed a motion to quash the indictment because the charging instrument showed on its face that the statute of limitations had expired. The trial court determined that it would hear both the motion to dismiss and the motion to quash on July 21, 2002. At the hearing, Appellant objected to the trial court construing the pre-trial writ of habeas corpus as a motion to dismiss the indictment; consequently, the court did not consider it or rule upon it. The parties agreed to submit the issue raised in the motion to quash based upon the motions, evidence, and briefs already on file. Additionally, the State offered a certified copy of the information filed in cause number 98-11-04121-CRW. The trial court denied Appellant's motion to quash.

On July 8, 2002, Appellant filed a motion to dismiss alleging that the prosecution was barred by limitations but he did not obtain a ruling on that motion prior to the beginning of trial on July 15, 2002. ⁽⁶⁾ At trial, the State offered evidence that an information charging Appellant with possession of marihuana had been filed on November 6, 1998 and it had remained pending until the time of trial. In its charge, the trial court provided an instruction pertaining to the statute of limitations and informed the jury that the limitations period is tolled where a valid information has been filed charging the defendant with the same offense. The court further instructed the jury that a valid information had been filed against Appellant in another cause number and required the jury to determine whether that information charged Appellant with the same offense as the indictment in the instant case. If the jury so found, it was instructed to add the period of time that the information was on file to the three-year period following the commission of the offense. The trial court did not provide a jury instruction pertinent to the State's allegation that Appellant had been absent from the state because the State had not offered any supporting evidence at trial. If the jury found that the information did not charge the same offense, it was instructed to find Appellant not guilty. Given the guilty verdict, the jury impliedly found that the information charged Appellant with the same offense as the indictment.

STATUTE OF LIMITATIONS

In his sole point of error, Appellant contends that the trial court erred in denying his motion to dismiss and the application for pretrial writ of habeas corpus because the indictment reflects on its face that the statute of limitations had expired prior to its presentment. He argues that the information filed in cause number 98-11-4121-CRW is invalid as a matter of law because it is not supported by an affidavit, and therefore, it would not serve to toll the statute of limitations.

Application for Writ of Habeas Corpus

Appellant seeks to appeal what he characterizes as the trial court's denial of the relief requested in his application for writ of habeas corpus. Prior to 1998, a defendant could raise limitations by habeas corpus because the State was required to prove that its prosecution was not time-barred, regardless of whether the defense challenged limitations. See Ex parte Dickerson, 549 S.W.2d 202, 203 (Tex.Crim.App. 1977). However, in Proctor v. State, 967 S.W.2d 840, 844 (Tex.Crim.App. 1998), the Court of Criminal Appeals held that limitations is a defense which the defendant must assert by filing a motion to dismiss or by requesting a jury instruction. Thus, a defendant can no longer challenge limitations by filing an application for writ of habeas corpus. Ex parte Gutierrez, 989 S.W.2d 55, 56 (Tex.App.--San Antonio 1998, no pet.). The trial judge, ostensibly aware of Proctor and Gutierrez, informed Appellant that he would consider the application for writ of habeas corpus as a motion to dismiss. Appellant, however, rejected the trial court's offer, and the court, in turn, refused to rule on the writ application. An applicant cannot appeal from a trial court's refusal to issue or grant a writ of habeas corpus, but may only appeal the denial of relief on the merits of the application. Ex parte Hargett, 819 S.W.2d 866, 867-68 (Tex.Crim.App. 1991). Therefore, we will not address this aspect of Appellant's argument.

Motion to Dismiss/Quash the Indictment

Appellant also challenges the trial court's denial of his motion to dismiss. The trial court expressly did not rule on Appellant's motion to dismiss. Therefore, he has not preserved error with respect to that motion. See Tex.R.App.P. 33.1(a)(2)(A)(requiring adverse ruling in order to preserve error). However, we will construe Appellant's point of error as challenging the trial court's ruling on his motion to quash the indictment.

Both the State and Appellant agree that the three-year statute of limitations set forth in Article 12.01(6) applies in this case. See Tex.Code Crim.Proc.Ann. art. 12.01(6)(Vernon Supp. 2003). In the amended indictment and at trial, the State relied on the tolling provision found in Article 12.05(b) and (c):

(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.

Tex.Code Crim.Proc.Ann. art. 12.05 (Vernon 1977).

An information is a written statement filed and presented in behalf of the State by the district or county attorney, charging the defendant with an offense which may by law be so prosecuted. Tex.Code Crim.Proc.Ann. art. 21.20 (Vernon 1989). The requisites of an information are set forth in Article 21.21. Tex.Code Crim.Proc.Ann. art. 21.21. Additionally, an information must be based upon a complaint and that complaint should be filed with the information. See Tex.Code Crim.Proc.Ann. art. 21.22. ⁽⁷⁾ Appellant asserts that the information filed in cause number 98-11-4121-CRW is invalid as a matter of law because the supporting complaint was not filed with it as required by Article 21.22, and therefore, it does not serve to extend the limitations period.

On March 24, 1998, Deputy Martin filed a complaint in the Justice of the Peace Court, Precinct 2, of Ward County, Texas, charging Appellant with possession of more than fifty but less than 2,000 pounds of marihuana. Although the J.P. court has authority to take a complaint and issue an arrest warrant, the complaint filed in the J.P. court does not toll the statute of limitations because that court that does not have felony jurisdiction. See Ex parte Ward, 560 S.W.2d 660, 662 (Tex.Crim.App. 1978). When the State later filed an information in the district court in cause number 98-11-4121-CRW, it did not file with it the supporting affidavit of Deputy Martin.

Appellant's argument assumes that the alleged invalidity of the information somehow relates back to its filing date so that it does not toll the statute of limitations at all. To the contrary, even a defective charging instrument will, according to the terms of Article 12.05, serve to toll the statute of limitations until a court with jurisdiction enters an order invalidating that charging instrument. Consistent with Article 1.14(b), Article 12.05 properly places the burden on the defendant to object and obtain a ruling that the charging instrument is invalid. See Tex.Code Crim.Proc.Ann. art. 1.14(b)(Vernon Supp. 2003). Only upon the issuance of an order declaring the charging instrument invalid does the charging instrument cease to toll the statute of limitations, and even then, the statute of limitations is still tolled from the filing date of the charging instrument through the date of entry of the order invalidating the charging instrument. Appellant did not raise any complaint about the information until long after the indictment had been returned against him. Therefore, even assuming that Appellant is correct that the information was invalid, the information still would have tolled the statute of limitations from November 6, 1998 until after the indictment was presented on April 26, 2001. Consequently, the trial court did not err in denying Appellant's motion to quash. Appellant's sole point of error is overruled and the judgment of the trial court is affirmed.

July 31, 2003

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

1. The trial court's judgment erroneously shows the trial court cause number to be 01-04-4382-CRR. The correct cause number is 01-04-4382-CRW.

2.

On April 30, 1999, the trial court signed a judgment nisi because Appellant had failed to appear. Appellant also did not appear for the bond forfeiture trial on July 27, 2001. On August 31, 2001, the trial court entered an agreed final judgment between the State and the surety.

3.

Plea papers prepared in anticipation of Appellant's guilty plea on October 23, 1998 reflected that the parties had agreed to a fine of $2,500 and deferred adjudication probation for a term of ten years.

4.

The information was filed in the 143rd District Court in cause number 98-11-04121-CRW, styled The State of Texas v. Javier Rodriguez.

5.

The State sought to amend the indictment by adding the following paragraphs:

And it is further presented in and to said court that during a period from November 30, 1998, until June 3, 2002, the defendant was absent from the state of Texas;

And it is further presented in and to said court that during a period from November 6, 1998, until June 6, 2002, an information charging the above offense was pending in a court of competent jurisdiction, to-wit: cause #98-11-4121-CRW in the 143rd Judicial District Court of Ward County, Texas, styled the State of Texas vs. JAVIER RODRIGUEZ.

6.

Appellant also filed the motion to dismiss in cause number 98-11-4121-CRW but the trial court transferred it and other documents into cause number 01-04-4382-CRW on the day of trial. The court refused to rule on the motion to dismiss or other motions because Appellant had previously refused the trial court's offer to treat the habeas corpus application as a motion to dismiss and because Appellant's July 8 motion to dismiss had not been filed during the time for filing pre-trial motions.

7.

Article 21.22 provides: "No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The affidavit shall be filed with the information. It may be sworn to before the district or county attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths."