Lonnie Moore v. State

NO. 07-10-00369-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 31, 2012
LONNIE MOORE, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2010-460,904; HONORABLE LARRY B. "RUSTY" LADD, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Lonnie Moore appeals his conviction for misdemeanor assault and
sentence of confinement for one year in the county jail. We will affirm.
Background
A November 7, 2006, indictment in the 140th District Court of Lubbock County
charged appellant with the September 8, 2006, aggravated assault with a deadly
weapon1 of Mais and Smith. On May 19, 2010, a complaint and information were filed
1
See Tex. Penal Code Ann. § 22.02 (West 2011).
against appellant in County Court at Law Number One of Lubbock County. The
complaint charged appellant with the misdemeanor assault2 of Mais based on the
events alleged in the November 2006 indictment. On the State’s motion, the trial court
in August 2010 authorized amendment of the information to include the following tolling
paragraph:
And it is further presented in and to said court that during a period from
November 7, 2006 until today’s date, an indictment charging the above
offense was pending in a court of competent jurisdiction, to-wit: cause
number 2006-414,421 in the 140th District Court of Lubbock County,
Texas, styled the State of Texas vs. Lonnie Moore.
Trial on the amended information was to the bench, which found appellant guilty
of the charged offense and assessed the punishment noted. This appeal followed.
Analysis
Through one issue, appellant argues the trial court’s judgment convicting him of
misdemeanor assault is void because the statute of limitations was not tolled during the
pendency of the 2006 indictment for aggravated assault with a deadly weapon.
A statute of limitations protects one accused of crime “from having to defend
themselves against charges when the basic facts may have become obscured by the
passage of time and to minimize the danger of official punishment because of acts in
the far-distant past.” Hernandez v. State, 127 S.W.3d 768, 772 (Tex.Crim.App. 2004)
(citing Toussie v. United States, 397 U.S. 112, 114-15, 90 S. Ct. 858, 860, 25 L. Ed. 2d
156 (1970)). The limitations period for misdemeanor assault and aggravated assault is
2
See Tex. Penal Code Ann. § 22.01(a) (West 2011).
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two years. See Tex. Code Crim. Proc. Ann. art. 12.02(a) (West Supp. 2011)
(misdemeanor offenses) and art. 12.03(d) (West 2005) (aggravated offenses).
“The rules with respect to allegations in an indictment and the certainty required
apply also to an information.” Tex. Code Crim. Proc. Ann. art. 21.23 (West 2009). “[A]
judgment is void only in very rare situations-usually due to a lack of jurisdiction. . . . A
judgment of conviction for a crime is void when the document purporting to be a
charging instrument . . . does not satisfy the constitutional requisites of a charging
instrument, thus the trial court has no jurisdiction over the defendant[.]” Nix v. State, 65
S.W.3d 664, 668 (Tex.Crim.App. 2001) (footnote omitted). A charging instrument must
reflect on its face that the prosecution is not barred by limitations. Tita v. State, 267
S.W.3d 33, 38 (Tex.Crim.App. 2008) (citing Tex. Code Crim. Proc. Ann. art. 21.02(6)).
A defendant may challenge the jurisdiction of the trial court “if the face of the indictment
shows that any prosecution is barred by the statute of limitations. This is because the
defect is incurable and irreparable. Limitations is an absolute bar to prosecution. There
is no point in wasting scarce judicial and societal resources or putting the defendant to
great expense, inconvenience, and anxiety if the ultimate result is never in question.”
Phillips v. State, 362 S.W.3d 606, 617 n.64 (Tex.Crim.App. 2011) (quoting Ex parte
Smith, 178 S.W.3d 797, 801-02 (Tex.Crim.App. 2005)).
However, “a prior indictment tolls the statute of limitations under Article 12.05(b)
for a subsequent indictment when both indictments allege the same conduct, same act,
or same transaction.” Hernandez, 127 S.W.3d at 774; Tex. Code Crim. Proc. Ann art.
12.05(b) (West 2005). Thus “if the State’s pleading includes a tolling paragraph,
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explanatory averments, or even innuendo allegations, this suffices to show that [a
prosecution for] the charged offense is not, at least on the face of the indictment, barred
by limitations.” Tita, 267 S.W.3d at 38 (internal quotation marks omitted). Pleading
tolling facts in the charging instrument “avoids a defect in the charging instrument.”
Tita, 267 S.W.3d at 38 (quoting G. Dix & R. Dawson, Texas Practice: Criminal Practice
and Procedure § 20.349 at 740 (2nd ed. 2001)). Even when a tolling paragraph
contains a reparable defect, the trial court is not deprived of jurisdiction as long as the
charging instrument meets the constitutional and statutory definitions of a charging
instrument. Studer v. State, 799 S.W.2d 263, 268-69 (Tex.Crim.App. 1990); Burton v.
State, 805 S.W.2d 564, 571 (Tex.App.--Dallas 1991, pet. refused).
Here, appellant was indicted within the limitations period for aggravated assault
with a deadly weapon in a court possessing subject matter jurisdiction. Outside the two-
year limitations period, appellant was charged by information in county court at law with
misdemeanor assault. The offense charged in district court and that in county court at
law arose from the same conduct. Hernandez, 127 S.W.3d at 774; see Irving v. State,
176 S.W.3d 842, 845-46 (Tex.Crim.App. 2005) (assault is lesser-included offense of
aggravated assault when conduct constituting assault is same conduct alleged in
aggravated assault charge). The information invested the county court at law with
jurisdiction. Hernandez, 127 S.W.3d at 774.
Appellant further contends, however, the 2006 indictment did not toll limitations
for misdemeanor offenses arising from the same conduct and chargeable in the county
court at law. We reject this contention, for two reasons.
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First, the contention is based on a misreading of the record. Appellant asserts
that the county court at law authorized an amendment to the indictment pending in the
140th District Court. Not so. As mentioned, the complaint and information were filed in
the county court at law in May 2010. In August 2010, the State filed, in the county court
at law, a motion seeking approval for an amendment to the information, to add the
tolling paragraph. The county court at law granted the State’s motion, but never
authorized amendment of the indictment pending in the district court.
Second, appellant’s contention finds no support in statute or case law. The Court
of Criminal Appeals held in Hernandez, “a prior indictment tolls the statute of limitations
under Article 12.05(b) for a subsequent indictment when both indictments allege the
same conduct, same act, or same transaction.” 127 S.W.3d at 774. Appellant would
limit the holding to instances in which the subsequent indictment occurs in a court of the
same jurisdictional level, and would exclude instances, like that before us, in which the
prior indictment was pending in district court but the subsequent charge is by
information in county court at law, even if the subsequent charge alleges the same
conduct. We see nothing in the Hernandez opinion to suggest the court intended such
a limitation on its holding. Nor is the limitation appellant posits supported by the
language of article 12.05. Subsection 12.05(b) speaks of an “indictment, information, or
complaint,” drawing no distinction among the three. Appellant points to the phrases in
subsection 12.05(c) referring to trial courts’ jurisdiction, but nothing in that subsection
suggests the tolling effect of a pending prior indictment, information or complaint is
limited to subsequent charges filed in courts of the same jurisdictional level. See
Mahaffey v. State, 364 S.W.3d 908, 913 (Tex.Crim.App. 2012) (describing means of
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statutory interpretation) We find no merit in appellant’s contention denying the tolling
effect of the November 2006 indictment on the subsequent misdemeanor charge in
county court at law.
For these reasons, we overrule appellant’s sole issue on appeal, and affirm the
judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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