State v. Robert Herbert ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-535-CR





THE STATE OF TEXAS,

APPELLANT

vs.





ROBERT HERBERT,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY,

NO. 34,905, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING

PER CURIAM

The State appeals from an order of the county court at law dismissing this cause. Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 1993). The underlying offense is possession of marihuana. Tex. Health & Safety Code Ann. § 481.121 (West 1992).

In his motion to dismiss, appellee contended that the information had not been presented within the two-year limitations period applicable to the offense. Tex. Code Crim. Proc. Ann. art. 12.02 (West 1977). An information is presented when it is filed by the proper officer in the proper court. Tex. Code Crim. Proc. Ann. art. 12.07 (West 1977). In its second point of error, the State urges that timely presentment of the information is shown by the docket sheet. Appellee argues that the information in this cause was never presented because it does not bear the county clerk's file mark.

An information is properly presented when it is delivered to the clerk's office by the prosecuting attorney. Queen v. State, 701 S.W.2d 314 (Tex. App.--Austin 1985, pet. ref'd). The clerk's file mark is not necessary to presentment. Rincon v. State, 615 S.W.2d 746 (Tex. Crim. App. 1981); Phariss v. State, 161 S.W.2d 1066 (Tex. Crim. App. 1942). The complaint in this cause bears a file mark dated August 20, 1991. The information appears in the record immediately after the complaint. The docket sheet states that both the complaint and the information were filed on August 20, 1991.

Appellee argues that Pharris is distinguishable because in that case the clerk testified that the information had been handed to her by the prosecutor. He distinguishes Rincon on the ground that that case involved a collateral attack on the information following a revocation of probation. Nevertheless, Rincon states that a docket sheet entry is sufficient to show the date of presentment and filing. We conclude that the record in this cause is sufficient to show that the information was presented on August 20, 1991, less than two years after September 14, 1990, the date of the alleged offense. The second point of error is sustained. We need not reach the State's first point of error.

The order of the county court at law dismissing this cause is reversed. The cause is remanded to that court for further proceedings.

[Before Justices Powers, Kidd and B. A. Smith]

Reversed and Remanded

Filed: March 10, 1993

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