

 


 


NUMBER 13-06-00298-CR

 
COURT OF APPEALS

 
THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



EUGENE MERCIER,	Appellant,

v.

THE STATE OF TEXAS,                                                               Appellee.


On appeal from the 332nd District Court of Hidalgo County, Texas.



MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Justice Benavides


 This case is before us for the second time.  See State v. Mercier, 164 S.W.3d 799
(Tex. App.-Corpus Christi 2005, pet. ref'd).  In the first appeal, we reversed the trial court's
order granting Mercier's motion for new trial and rendering a judgment of acquittal based
on insufficient evidence.  See id. at 823.  We remanded to the trial court for entry of
judgment in accordance with the jury's verdict.  Id.  The trial court rendered a judgment of
conviction for conspiracy to commit barratry, and it sentenced Mercier to two years'
confinement, suspended the sentence for five years and imposed community supervision,
and imposed a fine of $7,500.  Thereafter, upon Mercier's motion, the trial court reduced
the sentence to six months in a state jail facility, suspended the sentence for two years,
and imposed a fine of $7,500.  Mercier has now appealed, asserting numerous errors in
the trial court, and the State has filed a cross-appeal challenging the reduction in Mercier's
sentence.  Because we find that the indictment was fatally defective, we reverse and
render judgment dismissing the prosecution. (1) 
I.  Limitations

	By his first four issues, Mercier argues that the trial court erred by denying his
various motions to dismiss based on the statute of limitations. (2)  On March 21, 2000, a
grand jury first indicted Mercier on two counts of conspiracy to commit barratry.  The
indictment alleged that the crimes occurred on or about September 30, 1997.  On
December 19, 2001, Mercier was re-indicted for the same offenses.  Then on December
21, 2001, the State dismissed the first indictment.
	Mercier argues that the applicable limitations statute required that the indictment be
presented within three years after the date of the commission of the offense.  See Tex.
Penal Code Ann. § 38.12(f) (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 12.01(6)
(Vernon Supp. 2008) (providing catch-all limitations period of three years for felonies not
expressly listed); id. art. 12.03(b) (Vernon 2005) ("The limitation period for criminal
conspiracy or organized criminal activity is the same as that of the most serious offense
that is the object of the conspiracy or the organized criminal activity.").  He reasons that the
limitations period expired on October 1, 2000, and he calculates that date by excluding the
date of the offense and the date of the indictment.  See id. art. 12.04 (Vernon 2005). 
Although Mercier recognizes that the time that an indictment is pending is not included
when calculating the limitations period, see id. art. 12.05(b) (Vernon 2005), he argues that
this is a "tolling" provision that must be pleaded within any subsequent indictment.  Thus,
because the second indictment pleaded an offense that was outside the limitations period
and did not plead the tolling provision, the indictment was fatally defective, and he is
entitled to a dismissal of the prosecution.  
	The State does not dispute that the three-year limitations period applies.  However,
the State argues that the second indictment was properly within the limitations period
because limitations was tolled from March 21, 2000, when the first indictment was
presented, until December 19, 2001, when the second indictment was presented.  In its
brief, the State disputed that it was required to plead its reliance on tolling factors within the
second indictment. 
	First, we note that the State appears to argue that because Mercier raised this issue
in the prior appeal and we did not address it, the issue must lack merit or is somehow
barred from our consideration.  We disagree.  In the prior appeal, the State appealed the
trial court's determination that the verdict was based on insufficient evidence.  Mercier, 164
S.W.3d at 805.  Although the trial court also issued "conditional" orders addressing
Mercier's other arguments in the event of future appeals, including that the prosecution
was barred by limitations, we held that the trial court was without power to issue conditional
orders after granting a judgment of acquittal.  Id. at 811-12.  Accordingly, we did not
address Mercier's arguments regarding limitations.  Id.  Furthermore, although Mercier
raised cross-points in the prior appeal, he was under no obligation to do so because there
was no judgment of conviction against him, nor could there be an appealable judgment
until the trial court determined his sentence on remand.  See Tex. Code Crim. Proc. Ann.
art. 44.02 (Vernon 2006); Tex. R. App. P. 25.2(a) ("The trial court shall enter a certification
of the defendant's right of appeal each time it enters a judgment of guilt or other
appealable order.") (emphasis added); Tex. R. App. P. 21.3(h) (stating defendant must be
granted a new trial if the verdict is contrary to the law and the evidence); see also Abbott
v. State, 271 S.W.3d 695, 696-96 (Tex. Crim. App. 2008) (holding standard for determining
appellate jurisdiction is whether appeal is authorized by law, and generally, a criminal
defendant may only appeal a final judgment of conviction); cf. Tex. R. App. P. 38.2(b)
(requiring appellee to raise cross-points when trial court grants judgment notwithstanding
the verdict, and stating that failure to raise such cross points waives the issue).  For these
reasons, this issue is not barred by our prior opinion and is properly before us.
	Statutes of limitations were once considered jurisdictional in nature; thus, the failure
to plead and prove a tolling provision in order to save an indictment that, on its face, was
barred by limitations, was fatal to the indictment.  See Cooper v. State, 527 S.W.2d 563,
565 (Tex. Crim. App. 1975), overruled by Proctor v. State, 967 S.W.2d 840, 843 (Tex.
Crim. App. 1998).  Later, however, the Texas Court of Criminal Appeals held that a statute
of limitations is a "procedural rule, in the nature of a defense, that was enacted basically
for the benefit of defendants and not the State."  Proctor, 967 S.W.2d at 843.  In an
unpublished decision relying on this precedent, we held that the State was not required to
plead tolling factors in an indictment.  State v. Plambeck, Nos. 13-02-492-CR,
13-02-493-CR, 2007 WL 1706249, at *7 (Tex. App.-Corpus Christi Jun. 14, 2007, pet.
ref'd) (not designated for publication).
	After the parties filed their briefs in this appeal, however, the Texas Court of Criminal
Appeals held that the State must plead its reliance on a tolling provision if the indictment
does not demonstrate on its face that the crime alleged occurred within the limitations
period.  See Tita v. State, 267 S.W.3d 33, 37-38 (Tex. Crim. App. 2008). (3)  The court relied
on article 21.02(6) of the Texas Code of Criminal Procedure, which requires that an
indictment indicate on its face that the prosecution is not barred by limitations.  Tex. Code
Crim. Proc. Ann. art. 21.02(6) (Vernon 2009); Tita, 267 S.W.3d at 37.  The court further
held that under article 27.08(2), a defendant may object to the substance of an indictment
and obtain dismissal of the indictment, if "'it appears from the face thereof that a
prosecution for the offense is barred by a lapse of time.'" Tita, 267 S.W.3d at 37 (quoting
Tex. Code Crim. Proc. Ann. art. 27.08(2) (Vernon 2006)).  Applying both these statutes,
the court held that in order to avoid dismissal, the State must plead any tolling factors to
prevent the indictment from giving the appearance that the prosecution is barred by a lapse
of time.  Id. at 38.  Because the State failed to plead its reliance on the tolling provision, the
court held that the trial court erred in denying Tita's motion to dismiss the prosecution.
 Tita is directly on point.  Id.  Because the State failed to plead its reliance on the
tolling provision when it presented the second indictment against Mercier, the trial court
erred in denying Mercier's motions to dismiss the prosecution.  Tita, however, suggests
that this may not be the end of the inquiry.  
	In Tita, the court of criminal appeals held that Tita had raised a defect of "substance"
in the indictment.  Id.  Yet, upon finding that the trial court erred in denying Tita's motion
to dismiss and that the court of appeals erred in affirming that denial, the court remanded
to the court of appeals "for a harm analysis under Texas Rule of Appellate Procedure
44.2(b)."  Id.  The court cited both Texas Rule of Appellate Procedure 44.2(b) and a section
of Dix and Dawson's Criminal Practice and Procedure.  Id. (citing G. Dix & R. Dawson, 41
Texas Practice:  Criminal Practice and Procedure § 21.147 (2nd ed. 2001)). The
court's citation to Rule 44.2(b) and to Dix and Dawson, while simple in itself, creates
substantial confusion. 
	The legislature has classified defects in an indictment as either defects of form or
defects of substance.  Tex. Code Crim. Proc. Ann. art. 27.08 (listing defects of
substance); (4) id. art. 27.09 (Vernon 2006) (listing defects of form). (5)
  It has provided that
"[a]n indictment shall not be held insufficient, nor shall the trial, judgment or other
proceedings thereon be affected, by reason of any defect of form which does not prejudice
the substantial rights of the defendant."  See id. art. 21.19 (Vernon 2009) (emphasis
added).  
	Applying this statutory scheme for review of defects of form, the Texas Court of
Criminal Appeals has held that a defect of form is not grounds for reversal unless the
defect itself prejudiced the defendant's substantial rights.  See Adams v. State, 707
S.W.2d 900, 903 (Tex. Crim. App. 1986).  The Adams court held that the applicable harm
analysis involves three steps:
	The first step in answering this question is to decide whether the charging
instrument failed to convey some requisite item of "notice."  If sufficient
notice is given, this ends our inquiry.  If not, the next step is to decide
whether, in the context of the case, this had an impact on the defendant's
ability to prepare a defense, and, finally, how great an impact. 
 
Id.
 Later, the court of criminal appeals held that the Adams analysis does not apply to
appellate review of defects of substance.  Jackson v. State, 718 S.W.2d 724, 725 n.1 (Tex.
Crim. App. 1986).  It stated:
	Because we are not dealing with a notice defect, but are instead dealing with
the issue of whether the information in this cause actually states the offense
of evading arrest, we need not concern ourselves with this Court's recent
decisions of Adams v. State, 707 S.W.2d 900 (Tex. Crim. App. 1986), and
Opdahl v. State, 705 S.W.2d 697 (Tex. Crim. App.1986).
 
Id.  In Jackson, the court reversed a conviction based on a defect of substance in the
indictment without conducting a harm analysis.  See id. at 727.  
	Some courts following Jackson have either (1) expressly held that a defect of
substance is reversible, and harmful, per se, or (2) assumed that no harm analysis is
required when the indictment contains a defect of substance and have reversed without
requiring a showing of harm.  See Thompson v. State, 219 S.W.3d 171, 183 (Tex.
App.-Houston [14th Dist.] 2001, no pet.) ("Consequently, where the State fails to amend
an indictment alleging a requisite mental state, and the defendant timely objects to the
omission, the trial court's failure to quash the indictment has been, and still is, treated as
error harmful under any harm analysis, i.e. reversible per se."); Sanchez v. State, 32
S.W.3d 687, 699 (Tex. App.-San Antonio 2000), overruled on other grounds, 120 S.W.3d
359 (Tex. Crim. App. 2003); Burleson v. State, 935 S.W.2d 526, 529 (Tex. App.-Waco
1996, no pet.), overruled on other grounds, State v. Mason, 980 S.W.2d 635 (Tex. Crim.
App. 1998); see also G. Dix & R. Dawson, 41 Texas Practice:  Criminal Practice and
Procedure § 20.42 (2nd ed. Supp. 2008) ("An erroneous failure to sustain an objection
raising a defect of substance apparently requires automatic reversal regardless of whether
the appellant was harmed."). (6)  One other court, however, has held that Texas Rule of
Appellate Procedure 44.2(b) could be applied to review of a defect of substance.  See
Tollett v. State,  219 S.W.3d 593, 600 (Tex. App.-Texarkana 2007, pet. ref'd). (7) 
	The problem with applying Rule 44.2(b) to defects of substance is that such an
application seems to render article 21.19 meaningless, given that Rule 44.2(b) would
provide the same review for defects of substance as for defects of form.  Rule 44.2(b)
states that a nonconstitutional error "that does not affect substantial rights must be
disregarded."  Tex. R. App. P. 44.2(b).  For example, applying Rule 44.2(b) to a defect of
substance, the Texarkana Court of Appeals focused on whether the indictment provided
sufficient notice to allow the defendant to prepare his defense, which is exactly the sort of
review that Jackson rejected when it stated that Adams does not apply to defects of
substance.  Jackson, 718 S.W.2d at 725 n.1;  Tollett,  219 S.W.3d at 600.  
	To further compound the confusion, in Tita, the court of criminal appeals cited a
section of Dix and Dawson's Criminal Practice and Procedure to support the proposition
that a harm analysis should be conducted.  See Tita, 267 S.W.3d at 38 (citing G. Dix & R.
Dawson, 41 Texas Practice:  Criminal Practice and Procedure § 21.147 (2nd ed.
2001)).  The 2001 edition of Dix and Dawson, cited by the court, discusses the Adams
analysis for harm arising from a defect of form.  G. Dix & R. Dawson, 41 Texas Practice: 
Criminal Practice and Procedure § 21.147 (2nd ed. 2001).  It states that the basis for
the Adams rule makes it clear that the "Adams rule does not apply if the charging defect
was one of substance," and notes that this was confirmed by the court of criminal appeals
in Jackson. Id.  Dix and Dawson states that "[w]hen an appellate court finds that the trial
court erred in rejecting a defendant's claim that the charging instrument suffers from a
defect of substance, both pre-Adams law and Jackson assume that no harmless error rule
applies.  Therefore, reversal is automatic."  Id.  Thus, Dix and Dawson appears to
recognize that no harm analysis applies.
	In a footnote, however, Dix and Dawson notes that "[t]his is not a necessary result
. . . .  Error in overruling a challenge based on a defect of substance might be held subject
to the general harmless error rule in [Texas Rule of Appellate Procedure 44.2(b)]."  In
another footnote, Dix and Dawson notes that "[t]he courts' assumption has also been that
error in rejecting a challenge to a charging instrument based on a defect of substance is
not subject to the general harmless error analysis as reflected in the Rules of Appellate
Procedure."  Id.  It notes that this question has been left "open," although this statement
appears inconsistent with its prior statement that reversal is automatic.  Id.
	Dix and Dawson then surmises that "[p]erhaps the case law culminating in Jackson
was simply incorrect, and article 21.19 does not in fact add anything to the analysis
applicable to determine when error consisting of overruling a motion to quash for a defect
of substance requires reversal of a conviction."  Id.  However, it goes on to note that the
difficulty in applying a harmless error analysis to defects of substance is how to
conceptualize the error, noting that Adams alters the general harmless error analysis to
focus on the form defect itself, rather than on the trial judge's action.  Id. 
	In sum, the court of criminal appeals in Tita cited to a section of Dix and Dawson
that raises numerous questions but provides no answers to those questions.  In fact, Dix
and Dawson has now been updated to reflect the court's decision in Tita, and it recognizes
the resulting confusion:
	Tita, however, seems to make clear that error in overruling a meritorious
motion to quash raising a defect of substance is subject to harmless error
analysis.  It also makes clear this analysis is to be made under Rule 44.2(b)
provision for nonconstitutional harmless error.  Nothing in the decision,
however, indicates how Rule 44.2(b) is to be applied to this situation or how,
if at all, this analysis differs from harmless error analysis under Article 21.19
and Adams.

G. Dix & R. Dawson, 41 Texas Practice:  Criminal Practice and Procedure § 21.147
(2nd ed. Supp. 2008). (8) 
	The court of criminal appeals' citation to Rule 44.2(b) and to Dix and Dawson has
left many questions in its wake.  However, one thing is clear--applying a harm analysis to
substantive defects in an indictment is inconsistent with the court of criminal appeals's prior
decision in Jackson, where the court reversed without finding harm and expressly rejected
the Adams harm analysis.  Jackson, 718 S.W.2d at 727.  We believe that principles of
stare decisis require more than a mere citation to a rule of procedure and a treatise to
overrule prior precedent in an area as confused as this one is.  
	As the court of criminal appeals has explained, it will not overrule precedent "lightly." 
Ex parte Douthit,  232 S.W.3d 69, 74 (Tex. Crim. App. 2007).  "[T]he goals of the doctrine
of stare decisis include 'promot[ing] judicial efficiency and consistency, encourag[ing]
reliance on judicial decisions, and contribut[ing] to the integrity of the judicial process.'" Id.
(quoting Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000)).  Had the court of
criminal appeals intended to overrule Jackson, we expect that it would have provided some
analysis explaining its reasoning and would have answered the questions raised by Dix
and Dawson.  Accordingly, we decline to hold that the court of criminal appeals intended
to overrule Jackson and its progeny.  Instead, we construe the court's directive to the court
of appeals as merely an acknowledgment that the court of appeals did not address or
apply the remedy for a substantive defect in the indictment because it found no defect
existed.  
	Because Jackson and its progeny have not been expressly overruled, we follow that
precedent.  Jackson, 718 S.W.2d at 727.  Accordingly, we sustain Mercier's first four
issues, reverse the trial court's judgment, and render judgment dismissing the prosecution. 
We need not address Mercier's remaining issues, nor do we address the State's cross-issue regarding sentencing, because these issues would not further affect the outcome of
this appeal.  Tex. R. App. P. 47.1.  
II.  Conclusion

	We sustain Mercier's first through fourth issues, and we reverse and render
judgment dismissing the prosecution.
							______________________________
							GINA M. BENAVIDES,
							Justice
Do not publish.
See Tex.R. App.P. 47.2(b)

Memorandum Opinion delivered and
filed this the 14th day of May, 2009.

1.  The procedural history of this case, as well as the facts, were set forth in our first opinion.  State v.
Mercier, 164 S.W.3d 799 (Tex. App.-Corpus Christi 2005, pet. ref'd).   We will not repeat them here except
to explain the basic reasons for our holding.  Tex. R. App. P. 47.1, 47.4.
2.  Mercier argues that the trial court erred by overruling the following motions, all raising the same
arguments:  (1) his application for a pretrial writ of habeas corpus; (2) his motion to reconsider the denial of
his application for a pretrial writ of habeas corpus; (3) his motion to acquit based on limitations; and (4) his
renewal of the motion to acquit based on limitations.  The State does not dispute that these motions and
rulings preserved Mercier's issue for our review.  
3.  Mercier filed a supplemental appellant's brief shortly before oral argument in this case, notifying this
Court of the Tita decision.  The State has moved to strike this brief, arguing that Mercier failed to obtain
permission to file his supplemental brief and that the brief does not comply with the rules of appellate
procedure because it does not have a table of contents or a table of authorities.  First, we note that the brief
does, in fact, contain a table of contents and a table of authorities.  More importantly, however, the
supplemental brief merely brings to our attention a change in the law since the filing of the original briefs,
which could have been merely included in a letter brief to this Court.  We would be required to consider the
new law raised in the supplemental brief even if it had not been brought to our attention by Mercier. 
Accordingly, we deny the State's motion and will consider the brief.  We note that at oral argument, we granted
the State leave to file a supplemental brief addressing the recent changes in the law.  The State has not done
so.
4.  That section provides:

	 There is no exception to the substance of an indictment or information except:
 
	1. 	That it does not appear therefrom that an offense against the law was committed by
the defendant;

	2. 	That it appears from the face thereof that a prosecution for the offense is barred by
a lapse of time, or that the offense was committed after the finding of the indictment;

	3. 	That it contains matter which is a legal defense or bar to the prosecution; and

	4. 	That it shows upon its face that the court trying the case has no jurisdiction thereof.

Tex. Code Crim. Proc. Ann. art. 27.08 (Vernon 2006).
5.   That section provides:

	Exceptions to the form of an indictment or information may be taken for the following causes
only:
 
	1. 	That it does not appear to have been presented in the proper court as required by
law;
 
	2. 	The want of any requisite prescribed by Articles 21.02 and 21.21.
 
	3. 	That it was not returned by a lawfully chosen or empaneled grand jury.

Id. art. 27.09 (Vernon 2006).
6.  In Sanchez, the San Antonio Court of Appeals noted that in Vela v. State, this Court applied the
Adams analysis to a defective indictment that failed to allege an element of the charged offense  See 32
S.W.3d 687, 700 (Tex. App.-San Antonio 2000), overruled on other grounds, 120 S.W.3d 359 (Tex. Crim.
App. 2003) (citing Vela v. State, 776 S.W.2d 721, 724 (Tex. App.-Corpus Christi 1989, no pet.)).  Sanchez
and Dix and Dawson note that this is actually a defect of substance that would not require a harm analysis,
but state that this Court characterized it as a defect of form.  See id.; G. Dix & R. Dawson, 41 Texas Practice: 
Criminal Practice and Procedure § 21.147 (2nd ed. Supp. 2008).  We need not determine whether Vela
correctly characterized the defect as one of form or substance, as that issue is not now before the Court. 
Whether correct or incorrect, this Court characterized the defect as one of form, framing the issue as a
"notice" issue, and, nevertheless, properly applied Adams's harm analysis to the form defect. Vela, 776
S.W.2d at 724. 
7.  See also Flores v. State, 102 S.W.3d 328, 333 (Tex. App.-Eastland 2003, pet. ref'd) (holding that
defect alleged was one of form, but stating, in dicta, that it would apply same harm analysis to defect of
substance).  
8.  The 2007-2008 Supplement issued in November 2007 does not reflect this change, but it is available
in the electronic updates published on Westlaw at 41 TXPRAC § 21.147. 

