Ex Parte Ward

560 S.W.2d 660, 1978 Tex. Crim. App. LEXIS 1003

• Court: Court of Criminal Appeals of Texas
• Decided: January 18, 1978
• Docket: 56017
• Status: Published

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order of the trial court entered in a habeas corpus proceeding.

The appellant is charged by indictment with the crime of aggravated rape. The habeas corpus application in the trial court sought the discharge of the appellant on the basis that the indictment was void, and also sought reduction of appellant’s bail pending trial. The trial court granted the relief sought in respect to bail and lowered appellant’s bond to $15,000. The trial court denied all relief on the issue of the void indictment. Appellant only appeals from the denial of relief on the issue of the indictment.

Ordinarily, when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus relief is not available prior to trial to test the sufficiency of the complaint, information or indictment. Ex parte Meers, 129 Tex.Cr.R. , 88 S.W.2d 100; Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84. This Court will, however, take note of the fact that there is no pleading charging an offense in an appeal from a habeas corpus hearing.

In Ex parte Dickerson, Tex.Cr.App., 549 S.W.2d 202, appeal was taken from an adverse ruling in a habeas corpus hearing relative to bail. This Court took notice of the fact that the indictment showed on its face that it was barred by limitation and dismissed prosecution under the indictment, setting forth the following rule:

“. . . if the pleading, on its face, shows that the offense charged is barred by limitations the complaint, information, or indictment is so fundamentally defective that the trial court does not have jurisdiction and habeas corpus relief should be granted.”

The rape with which appellant is charged was allegedly committed on March 14,1974. The indictment in this case was presented on July 6, 1977, over three years and three months from the date of the alleged rape.

At the time of the alleged incident, the period of limitations was set by Art. 12.01, V.A.C.C.P., which provided, in pertinent part: “. . . felony indictments may be presented within these limits, and not afterward: (4) one year from the date of the commission of the offense: any felony in Penal Code Chapter 21 (Sexual Offense).”¹ The indictment in the instant case, introduced into evidence by the State, was clearly presented beyond the time allowed by the statute.

In an apparent attempt to overcome the limitations barrier, the indictment included the following averment:

“And the grand jurors aforesaid do further present that on or about the 14th day of March, 1974, a complaint against the said Scottie Gene Ward, at the time known only as an unknown white male with the nickname Cherokee and being described as approximately 20 years old, 5'11", 165 to 180 pounds with brown hair, charging him with the same offense charged in this indictment was duly filed in the Justice Court of Precinct No. One of Orange County, Texas, and thereafter said complaint was pending in said court at the time of the presentment of this indictment.” ²

This allegation was included in the indictment in an effort to bring it within the provisions of Art. 12.05, V.A.C.C.P., which provides, in pertinent part:

“(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.”

This case presents the issue of whether a complaint, filed in a justice court, will toll the running of the statute of limitations in a felony case. This question appears to be one of first impression. We hold that such a complaint does not toll the running of the period of limitations.

Article 12.05, supra, provides that the period of limitations will be tolled only after the “indictment, information, or complaint is filed in a court of competent jurisdiction . .” In Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248, 255, this Court stated: “A court of competent jurisdiction means a court that has jurisdiction of the offense.”

In Huitín, it was further stated that jurisdiction “includes the three essentials necessary to the jurisdiction of a court; the court must have authority over the person and the subject matter, and it must have power to enter the particular judgment rendered.” See 16 Tex.Jur.2d, Criminal Law, Sec. 200. In 15 Tex.Jur.2d, Courts, Sec. 45, it is written: “Jurisdiction is the power to hear and determine issues of law and fact involved in a case, and to render a judgment thereon, after deciding the existence or non-existence of material facts and applying the law to the findings.”

V.T.C.A., Penal Code, Sec. 21.03, classifies aggravated rape as a felony of the first degree. Article 5, Sec. 8, Vernon’s Constitution of Texas Annotated, provides, in pertinent part: “The District Court shall have original jurisdiction in all criminal cases of the grade of felony . . . .” This provision is also incorporated in Art. 4.05, V.A.C. C.P. Article 5, Sec. 19, Vernon’s Constitution of Texas Annotated, provides, in pertinent part: “Justices of the peace shall have jurisdiction in criminal matters of all cases where the penalty or fine to be imposed by law may not be more than two hundred dollars . . . .” This provision is also incorporated in Art. 4.11, V.A.C.C.P.

While the justice court had authority to take a complaint and issue a warrant of arrest, we find that such court did not have jurisdiction of the felony offense charged herein so as to come within the ambit of Art. 12.05, supra. To hold to the contrary would be to allow a “credible person” to file a complaint in the justice court charging an accused with a felony offense without inquiry being made about the nature of the knowledge upon which an affiant bases his factual statements, and thereby toll the statute of limitations forever. See Art. 15.05, V.A.C.C.P.; Wells v. State, Tex.Cr.App., 516 S.W.2d 663.

We hold that the indictment shows on its face that it is barred by limitation. The indictment is thus void and provides the trial court with no jurisdiction over the appellant.³

Habeas corpus relief is granted, and the prosecution under this indictment is ordered dismissed.

1 . Article 12.01 was amended by Acts 1975, 64th Leg., p. 478, ch. 203, sec. 5, eff. Sept. 1, 1975, to delete section 4 and include rape in the general three year statute of limitations for felonies. Even if the new three year period was applicable, the indictment would still have been presented after the time had expired.

2 . Article 21.07, V.A.C.C.P., provides, in pertinent part: “When the name of the person is unknown to the grand jury, the fact shall be stated, and if it be the accused, a reasonably accurate description of him shall be given in the indictment.” Thus, lack of knowledge of the accused’s name does not prevent indictment.

3 . Our research reflects that this issue has been met in other jurisdictions in Ex parte Lacey, 6 Okl. 4, 37 P. 1095; State v. Smith, 200 La. 10, 7 So.2d 368; Hattaway v. United States, 5 Cir., 304 F.2d 5. For what may be a contra view, see State v. Hemminger, 210 Kan. 587, 502 P.2d 791, where it was stated that a prosecution to toll the statute “is commenced by the filing of a verified complaint and the issuance of a warrant in good faith.” In the instant case, the complaint filed in the justice court was not introduced, the reference thereto being in the indictment. The record does not reflect whether a warrant was ever issued upon the basis of the complaint.