Ex Parte Matthews

873 S.W.2d 40, 1994 Tex. Crim. App. LEXIS 2, 1994 WL 5684

• Court: Court of Criminal Appeals of Texas
• Decided: January 12, 1994
• Docket: 243-93
• Status: Published

Opinions

OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was indicted for aggravated perjury allegedly committed on June 12, 1981. Tex.Penal Code Ann. § 37.03. Appellant’s indictment was presented on January 28, 1993 and alleged that the statute of limitations was tolled.¹ Tex.Code Crim.Proc.Ann. art. 12.05(a).² Appellant challenged the indictment, specifically the constitutionality of art. 12.05(a), in a pre-trial application for writ of habeas corpus. The trial judge denied relief and appellant appealed. However, the Court of Appeals dismissed the appeal for lack of jurisdiction. Ex parte Matthews, 846 S.W.2d 152 (Tex.App.—Houston [1st Dist.] 1993). We granted appellant’s petition for discretionary review to determine whether certain challenges to an indictment may be raised in a pre-trial application for writ of habeas corpus.³

I.

The threshold issue is whether the 1985 amendments to art. V, § 12(b) of the Texas Constitution preclude challenges to a charging instrument by way of a pre-trial application for writ of habeas corpus. Art. V, § 12(b) provides:

(b) An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

Texas Constitution, art. V, § 12(b).

Tex.Code Crim.Proc.Ann. art. 1.14(b), as amended in 1985, is the enabling legislation for art. V, § 12(b) and provides:

If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postcon-viction proceeding. Nothing in this article prohibits the trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 of this Code.⁴

In Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), we interpreted the amendments to art. V, § 12(b) and art. 1.14 and held a defect in a charging instrument is waived unless raised prior to trial. Id., 799 S.W.2d at 273. See also, Bridwell v. State, 804 S.W.2d 900, 905 (Tex.Cr.App.1991); State v. Murk, 815 S.W.2d 556, 557 (Tex.Cr.App.1991); DeDonato v. State, 819 S.W.2d 164, 167 (Tex.Cr.App.1991); Ex parte Morris, 800 S.W.2d 225, 227 (Tex.Cr.App.1990); and, Ex parte Gibson, 800 S.W.2d 548, 550 (Tex.Cr.App.1990).

Relying upon the amendment to art. V, § 12(b) and art. 1.14, the State contends:

The doctrine of “fundamental” error in an indictment has passed from the jurisprudence of this state. Assuming that the indictment in this case was returned by a lawful Grand Jury, which Appellant does not dispute, it imparted jurisdiction upon the trial court however severe its technical errors and omissions. In other words, while an indictment may be “voidable,” it can no longer be “void.”

State’s Brief pg. 6.

We believe, from a “common sense interpretation” of the amendments to art. V, § 12(b) and art. 1.14, that the amendments were intended to apply to post-conviction attacks on indictments and are inapplicable to pre-trial habeas proceedings.⁵ When the Senate Criminal Justice Committee discussed the proposed constitutional amendments to art. V, § 12 and art. 1.14 (Senate Bill 169 and Senate Joint Resolution 16), Senator Brown stated:

Basically, this bill and the resolution is designed to provide for a method of doing away with the troublesome problem we all recognize has confronted the courts in this State for some time, and that is, defects in the indictment which are not raised at the time of trial and then are which are raised for the first time on appeal and which in carrying out the duties of the function of the appellate system end up being reversed on appeal. And many times, with what is conceived by the public, prior defects that could have and should have been corrected at the trial stage if there were a mechanism for that to be done.

Senate Criminal Justice Committee Hearing, March 5, 1985. Further, in the House Floor Debate on the proposed amendments Representative Dan Morales explained:

... Any defect with regard to form or substance in a criminal indictment has got to be raised prior to the trial on the merits. So basically, what the legislation would do is simply require that the defendant raise any sort of technical defect with regard to an indictment prior to trial to preclude a situation where we go through the entire trial, get a verdict, a sentence, an ultimate conclusion to that trial, and then have the defect raised, resulting in a reversal.

House Floor Debate, May 24, 1985. Further, there is nothing in the legislative history indicating that the Legislature intended for the amendments to affect a defendant’s ability to challenge an indictment by way of a pre-trial application for writ of habeas corpus. Therefore, we hold the amendments to art. V, § 12(b) and art. 1.14 did not alter our jurisprudence relating to pre-trial applications for writ of habeas corpus.

II.

As a general rule, an indictment may not be challenged in a pre-trial application for writ of habeas corpus. Ex parte Mangrum, 564 S.W.2d 751 (Tex.Cr.App.1978); Ex parte Delbert, 582 S.W.2d 145 (Tex.Cr.App.1979); Ex parte Bonds, 148 Tex.Crim. 198, 185 S.W.2d 984 (1945); and, Ex parte Matox, 683 S.W.2d 93, 95 (Tex.App.—Austin 1984). However, this general rule is not without exceptions. In Ex parte Meyer, 172 Tex.Crim. 403, 357 S.W.2d 754 (1962), we reviewed a pre-trial application for writ of habeas corpus contending the prosecution was based upon a void statute. Id., 357 S.W.2d at 755. In Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978), we reviewed a pre-trial application for writ of habeas corpus challenging the tolling provisions of Tex.Code Crim.Proc.Ann. art. 12.05(b). Id., 560 5.W.2d at 662. Finally, in Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977), we held that Dickerson was entitled to a writ of habeas corpus where the indictment on its face showed the prosecution was barred by the statute of limitations. Therefore, we have entertained challenges to an indictment raised by pre-trial applications for writ of habeas corpus.⁶

III.

The Court of Appeals recognized the foregoing exceptions but nevertheless dismissed the appeal because appellant did “not challenge the statute under which she is charged, the perjury statute, as facially invalid as in Meyer ... [nor] does the appellant challenge the indictment as void on its face as in Ward_” Matthews, 846 S.W.2d at 154. We disagree.

Although appellant does not challenge the validity of the aggravated perjury statute, Tex.Penal Code Ann. § 37.03, the indictment in this case alleges the statute of limitations was tolled pursuant to Tex.Code Crim.Proc. Ann. art. 12.05(a). Without this allegation, appellant’s indictment may not be presented. Tex.Code Crim.Proe. art. 12.01(5). Therefore, in order to obtain a conviction, the State must prove the elements of aggravated perjury and the tolling of the statute of limitations. Appellant challenges the validity of the statute of limitations, without which there can be no prosecution. We see no meaningful distinction between the instant case and Meyer.

Further, the Court of Appeals erred in concluding Ward was distinguishable from the instant case. To the contrary, the cases are very similar. Ward’s indictment alleged the commission of an offense on a date beyond the statute of limitations. The indictment further alleged that the statute of limitations was tolled. Ward, 560 S.W.2d at 661. Ward filed a pre-trial application for writ of habeas corpus contending the statute of limitations was not tolled and the trial judge denied relief. Ward appealed and we reversed, holding the statute of limitations was not tolled. Id., 560 S.W.2d at 662. In the instant case, the indictment alleges the commission of an offense on a date beyond the statute of limitations. The indictment further alleges that the statute of limitations was tolled pursuant to art. 12.05(a). Appellant’s pre-trial writ application challenged art. 12.05(a) and the trial judge denied relief. Appellant now seeks review of that decision. Therefore, there is no distinction between this case and Ward; if appellant is correct, her prosecution will be limitations barred just as the prosecution in Ward.

Ward and Meyer control the disposition of the instant case. Appellant’s pre-trial application for writ of habeas corpus was an appropriate vehicle for appellant to challenge her indictment. Accordingly, the Court of Appeals erred in dismissing the appeal for lack of jurisdiction. The judgment of the Court of Appeals is reversed and the case is remanded to that Court for consideration of appellant’s points of error.

MILLER, J., joins part I but concurs only to parts II and III.

1 . The statute of limitations for the offense of aggravated perjury is three years. Tex.Code Crim.Proc.Ann. art. 12.01(5).

2 . Tex.Code Crim.Proc.Ann. art. 12.05 provides:

(a) The tíme during which the accused is absent from the state shall not be computed in the period of limitation.

(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.

3 . Appellant’s ground for review states:

If the State is required to plead the tolling statute to have a valid indictment, can a defendant challenge the constitutionality of that statute by way of pre-trial habeas corpus.

4 . All emphasis is supplied unless otherwise indicated.

5 . In his testimony before the Senate Criminal Justice Committee concerning the amendments, State Prosecutor Robert Huttash stated:

... First of all, I don't think there is any perfect way to draw up the constitutional amendment or a statute to deal with indictments and informations. I would think, and hope, that the courts of this state, the appellate courts and the trial courts, will give this bill and this constitutional amendment, if passed, a common sense interpretation.

Senate Criminal Justice Committee hearing, March 5, 1985.

6 . The State concedes that certain issues are properly considered in a pre-trial habeas corpus. See, Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.Cr.App.1982) (defendant may raise a claim of double jeopardy in a pre-trial application for writ of habeas corpus); Stephens v. State, 806 S.W.2d 812 (Tex.Cr.App.1990) (defendant may raise a claim of double jeopardy in a pre-trial application for writ of habeas corpus); and, Ex parte Keller, 595 S.W.2d 531, 532 (Tex.Cr.App.1980) (defendant may seek a determination of the reasonableness of bail in a pre-trial application for habeas corpus).