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Ex parte Ulloa

Court of Criminal Appeals of Texas

March 22, 2017

Ex parte MIKE ANGEL ULLOA, Appellant

         ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS MONTGOMERY COUNTY

          Keller, P.J.

         Does an information toll the running of limitations in a felony case when the defendant did not waive his right to an indictment? We conclude that it does. Consequently, we affirm the judgment of the court of appeals.

         I. BACKGROUND

         Appellant was charged with two counts of tampering with physical evidence.[1] The alleged date of the offenses was December 21, 2009. The offenses were originally charged by complaint and information on February 2, 2011.[2] They were then charged by indictment on May 3, 2011. This indictment was dismissed on April 17, 2012. The offenses were again charged by complaint and information on February 26, 2014. Finally, the offenses were charged in the current indictment on August 20, 2015.

         Appellant filed a pretrial habeas application alleging that the three-year limitations period for the offenses had run. The question before the trial court was whether the running of limitations was tolled during periods in which an information-but no indictment-was pending. If the pendency of an information tolled the running of limitations, then the State's prosecution was not time-barred, but if tolling did not occur, then the three-year limitations period had expired. The trial court denied the habeas application, and appellant appealed.

         Relying upon Article I, § 12 of the Texas Constitution and upon Ex parte Long, [3] the court of appeals held that an information tolls the running of limitations in a felony case.[4] The court of appeals said that, under Article I, §12, "the presentment of either an indictment or an information to a court that would otherwise have jurisdiction over the case invests that court with jurisdiction of the cause."[5] The court further explained that "return of an indictment is not necessarily required to confer jurisdiction on a district court because a district court's jurisdiction in a felony case vests upon presentment of an information, and the defendant's right to be charged by an indictment can be waived."[6] The court of appeals affirmed the trial court's denial of habeas relief.[7]

         II. ANALYSIS

         The tampering charges are both felonies.[8] No provision specifically prescribes a limitations period for tampering with physical evidence, [9] so the catch-all provision for felonies applies, providing a limitations period of three years.[10]

         The State argues that limitations was tolled during the pendency of the informations by virtue of Article 12.05. That article provides:

The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.[11]

         The date on which appellant's offenses were alleged to have been committed was December 21, 2009, and the current indictment was returned on August 20, 2015. The time period between those two dates exceeds three years, but two informations were filed in this case. Each information was terminated by the return of an indictment. If the time periods between the filing of each information and the return of the corresponding superseding indictment are excluded, then less than three years elapsed for limitations purposes. The question is whether these informations were pending for the purpose of Article 12.05.

         When construing a statute, we give effect to the plain meaning of its text unless the language of the statute is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.[12] If the legislature has specifically defined a word or phrase, we must give effect to that statutory definition.[13] If the language of a statute is ambiguous, we may consider extratextual factors such as the legislative history, the common law, and the consequences of a particular construction.[14] We also take into account any prior caselaw construing a statute.[15]

The phrase "during the pendency" is defined by Article 12.05 to mean
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.[16]

         This language indicates that, as long as an information is pending in a court of competent jurisdiction, then it is considered to be pending for purposes of Article 12.05. We have suggested that the purpose of Article 12.05, including subsection (c), was to overturn the common law rule that a charging instrument "on which no valid ...


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