Opinion issued August 20, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-14-00962-CR
                          ———————————
                    THE STATE OF TEXAS, Appellant

                                       V.
                  JIMMY EARL DRUMMOND, Appellee


                  On Appeal from the 208th District Court
                          Harris County, Texas
                      Trial Court Case No. 1446229


                                 OPINION

     Appellant, the State of Texas, challenges the criminal district court’s order

granting the motion of appellee, Jimmy Earl Drummond, to quash and dismiss an

indictment accusing him of the Class A misdemeanor offense of official
oppression.1 In three issues, the State contends that the criminal district court erred

in granting appellee’s motion, holding that the pertinent statute of limitations 2 “was

not tolled by the filing of [its] initial complaint” against appellee, and holding that

its initial complaint “was not filed in a court of competent jurisdiction.”

      We affirm.

                                    Background

      On September 9, 2013, the State presented to a Harris County magistrate a

“COMPLAINT,” accusing appellee, then a sergeant with the Harris County

Constable’s Office (“HCCO”), Precinct 4, of committing the Class A misdemeanor

offense of official oppression on or about September 10, 2011. The complaint

contains a probable cause affidavit, which was sworn to by a peace officer

employed by the Harris County District Attorney’s Office and subscribed before an

assistant district attorney. The magistrate found probable cause for the arrest of

appellee, and the State filed the complaint in cause number 1400758 in the

criminal district court on September 9, 2013.

      On December 18, 2013, a Harris County Grand Jury returned a true bill of

indictment, specifically alleging that appellee,

      on or about September 10, 2011, . . . while a public servant acting
      under color of his office and employment, namely a Sergeant with the
1
      See TEX. PENAL CODE ANN. § 39.03(a)(1) (Vernon Supp. 2014). With exceptions
      not applicable here, an offense is a Class A misdemeanor. Id. § 39.03(d).
2
      See TEX. CODE CRIM. PROC. ANN. art. 12.02 (Vernon 2015).

                                           2
      [HCCO], intentionally subject[ed] . . . the Complainant[] to
      mistreatment that [appellee] knew was unlawful, to wit: by kicking
      the Complainant [and] . . . by dropping his knee forcefully on the
      Complainant’s upper back and neck area while the Complainant was
      handcuffed and face-down on the ground [and] . . . by grabbing the
      Complainant’s head and pulling it back while the Complainant was
      handcuffed and face-down on the ground.

Appellee challenged this indictment in his “Motion to Quash Indictment and

Dismiss Prosecution,” asserting that the indictment was improperly returned after

the expiration of the two-year statute of limitations governing the offense. 3

      On October 24, 2014, before the criminal district court ruled on appellee’s

motion to quash and dismiss, another Harris County Grand Jury returned a second

true bill of indictment in trial court cause number 1446229, the instant cause. This

second indictment contains the above quoted language from the first indictment.

And it “further allege[s]” that appellee “was previously charged by a complaint

and information [sic] and indictment with this offense from September 9, 2013

through October 24, 2014, during which period the statute of limitations for this

offense was tolled.” Appellee challenged the October 24, 2014 indictment in a

subsequent “Motion to Quash Indictment and Dismiss Prosecution,” asserting that

it was returned after the expiration of the two-year statute of limitations governing

the offense.




3
      See id.


                                          3
      At a hearing on appellee’s motions to quash and dismiss the indictments, the

State conceded that appellee’s motion to quash and dismiss the December 18, 2013

indictment was “meritorious” because it was returned outside of the two-year

limitations period and “did not on its face contain [a] tolling paragraph.” The trial

court granted appellee’s first motion and dismissed the December 18, 2013

indictment, noting that the State had “[a]greed as to [the] tolling paragraph.”

      In regard to appellee’s motion to quash and dismiss the October 24, 2014

indictment in the instant cause, the State asserted that the complaint that it had

initially filed in the criminal district court on September 9, 2013 tolled the two-

year limitations period. Appellee, in contrast, asserted that in the prosecution of a

Class A misdemeanor offense, a complaint, standing alone without the timely

filing of an information or return of an indictment prior to the expiration of the

two-year limitations period, does not toll the limitations period. The trial court

granted appellee’s motion and dismissed the October 24, 2014 indictment.

                                Standard of Review

      We review a trial court’s ruling on a motion to quash de novo. Smith v.

State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010); Tata v. State, 446 S.W.3d

456, 462 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); see also State v. Moff,

154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (“When the resolution of a question

of law does not turn on an evaluation of the credibility and demeanor of a witness,



                                          4
then the trial court is not in a better position to make the determination, so

appellate courts should conduct a de novo review of the issue.”). We construe

limitations provisions “strictly against the State and liberally in favor of the

defendant.” Gallardo v. State, 768 S.W.2d 875, 880 (Tex. App.—San Antonio

1989, pet. ref’d).

                                     Limitations

      In its three issues, the State argues that the trial court erred in granting

appellee’s motion to quash and dismiss the October 24, 2014 indictment in the

instant cause because its “initial complaint,” filed in the criminal district court on

September 9, 2013, tolled the two-year limitations period. See TEX. CODE CRIM.

PROC. ANN. art. 12.05(b) (Vernon 2015).

      Appellee argues that the trial court properly granted his motion to quash and

dismiss the October 24, 2014 indictment “because both the original indictment and

subsequent indictment were presented to the [criminal district] court after the

limitations period had expired.” He specifically argues that the trial court properly

held that “the filing of the initial complaint did not toll the running of the statute of

limitations because the mere filing of the complaint without the proper accusatory

pleading, i.e., an information or indictment, does not toll the statute of

limitations . . . for a Class A misdemeanor.” See TEX. CODE CRIM. PROC. ANN. art.

12.02(a) (Vernon 2015).



                                           5
      A statute of limitations protects one accused of an offense “from having to

defend [himself] 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) (quoting Toussie v. United States, 397 U.S. 112, 114–15, 90 S.

Ct. 858, 860 (1970), superseded by statute on other grounds as recognized in

United States v. Tavarez-Levario, 788 F.3d 433, 437 (5th Cir. 2015)). A charging

instrument must reflect on its face that a prosecution thereunder is not barred by

the applicable statute of limitations. Tita v. State, 267 S.W.3d 33, 37 (Tex. Crim.

App. 2008); see also TEX. CODE CRIM. PROC. ANN. art. 21.02(6) (Vernon 2009). If

a comparison of the date on which a charging instrument is presented indicates that

it was not presented within the applicable period of limitation, then, on a

defendant’s motion, it “must be dismissed.” Tita, 267 S.W.3d at 37; see also TEX.

CODE CRIM. PROC. ANN. art. 27.08(2) (Vernon 2006).

      In 2009, the Texas Legislature amended article 12.02, which now, in regard

to limitations for misdemeanor offenses, expressly provides:

      (a)   An indictment or information for any Class A or Class B
            misdemeanor may be presented within two years from the date
            of the commission of the offense, and not afterward.

      (b)   A complaint or information for any Class C misdemeanor may
            be presented within two years from the date of the commission
            of the offense, and not afterward.



                                        6
TEX. CODE CRIM. PROC. ANN. art. 12.02 (emphasis added); see also Act of May 24,

1973, 63rd Leg., R.S., ch. 399, § 2(b), 1973 Tex. Gen. Laws 883, 975, amended by

Act of May 25, 2009, 81st Leg., R.S., ch. 472, § (1)–(3), 2009 Tex. Gen. Laws

1077, 1077. In amending article 12.02, the legislature rewrote the previous single

paragraphed article 4 and created two new subsections: (a), which concerns the

requirement of a timely presentation of either “an indictment or information” for

the prosecution of Class A and B misdemeanor offenses, and (b), which concerns

the requirement of a timely presentation of either a “complaint or information” for

the prosecution of a Class C misdemeanor offenses. See Act of May 24, 1973,

63rd Leg., R.S., ch. 399, § 2(b), 1973 Tex. Gen. Laws 883, 975 (amended 2009).

      Here, the State, based on events occurring on September 10, 2011, attempted

to accuse appellee of committing the offense of official oppression, a Class A

misdemeanor.    See TEX. PENAL CODE ANN. § 39.03(a)(1), (d) (Vernon Supp.

2014). Thus, pursuant to the express language of article 12.02(a), the State, to

prosecute appellee for the offense, was required to present “an indictment or

information” against him by September 10, 2013, “and not afterward.” TEX. CODE

CRIM. PROC. ANN. art. 12.02(a) (emphasis added).


4
      “An indictment or information for any misdemeanor may be presented within two
      years from the date of the commission of the offense, and not afterward.” Act of
      May 24, 1973, 63rd Leg., R.S., ch. 399, § 2(b), 1973 Tex. Gen. Laws 883, 975,
      amended by Act of May 25, 2009, 81st Leg., R.S., ch. 472, § (1)–(3), 2009 Tex.
      Gen. Laws 1077, 1077.

                                          7
       Although, for limitation purposes, a timely presented “complaint” will

suffice under article 12.02(b) for the prosecution of a Class C misdemeanor, only a

timely presented “indictment or information” will suffice for the prosecution of

Class A and B misdemeanors under article 12.02(a). It is undisputed that the State

did not, by September 10, 2013, present in the criminal district court below an

“indictment or information” against appellee for the Class A misdemeanor offense

of official oppression. Indeed, the State did not present the indictment at issue

until October 24, 2014.

       The code of criminal procedure does further provide that the time “during

the pendency of an indictment, information, or complaint shall not be computed in

the period of limitation.” TEX. CODE CRIM. PROC. ANN. art. 12.05(b). And it

specifically defines “during the pendency” as meaning

       Th[e] 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.

Id. art. 12.05(c).

       The State argues that its filing of its September 9, 2013 complaint “was

sufficient to toll the statute of limitations” until the presentment of the October 24,

2014 indictment because article 12.05 expressly includes the word “complaint” and

it employs the disjunctive, “or.” However, a plain reading of article 12.05 reveals

that nothing within it relieved the State of its obligation under article 12.02(a) to

                                          8
present by September 10, 2013 in the criminal district court the appropriate

charging instrument for the Class A misdemeanor offense of official oppression,

i.e., either “an indictment or information.”

      Indeed, the legislature enacted article 12.05 because it “sought to give the

State more freedom to prosecute defendants when the original [charging

instrument] contains a defect.”       Hernandez, 127 S.W.3d at 771.            “[M]any

indictments, informations, and complaints [were] being held invalid because of

procedural errors and defects in form that ha[d] nothing to do with the guilt or

innocence of the persons charged, and persons guilty of capital, as well as other

crimes, [we]re going unpunished. . . .” Id. (quoting Vasquez v. State, 557 S.W.2d

779, 784 n.7 (Tex. Crim. App. 1977), overruled on other grounds by Proctor v.

State, 967 S.W.2d 840 (Tex. Crim. App. 1998)). Simply put, “[t]he provisions

[a]rticle 12.05(b) and (c) . . . were designed to overcome the rule that invalid

indictments will not toll the running of the statutes of limitation in the absence of a

statute so providing.” Vasquez, 557 S.W.2d at 784. The court of criminal appeals

has held that to fulfill the legislature’s purpose in enacting article 12.05(b), “a prior

indictment tolls the statute of limitations . . . for a subsequent indictment when

both indictments allege the same conduct, same act, or same transaction.”

Hernandez, 127 S.W.3d at 774; see, e.g., Brice v. State, No. 14-13-00935-CR,

2015 WL 545557, at *2 (Tex. App.—Houston [14th Dist.] Feb. 10, 2015, no pet.)



                                           9
(mem. op., not designated for publication). Thus, article 12.05, presuming the

existence of an appropriate charging instrument filed within the limitations period,

merely grants the State time to address procedural errors and defects in the

instrument that might not be raised before limitations expires.

      Had the State timely presented a defective indictment or information against

appellee in the criminal district court for the prosecution of the Class A

misdemeanor offense of official oppression, the time “during the pendency” of the

defective indictment or information, i.e., the time from the date of its filing to the

date the defect was determined, would “not be computed in the period of

limitation.” See TEX. CODE CRIM. PROC. ANN. art. 12.05(b), (c). Likewise, had the

State timely presented in an appropriate court a defective complaint for the

prosecution of a Class C misdemeanor offense, the time “during the pendency” of

the defective complaint, i.e., the time from the date of its filing to the date the

defect is determined, would “not be computed in the period of limitation.” See id.

But, here, the State was attempting to charge appellee with a Class A misdemeanor

offense, not a Class C misdemeanor offense, and the State’s initial complaint filed

on September 9, 2013 was, by its own admission, not an indictment or information.

      A “complaint” serves as the charging instrument in a prosecution conducted

in a municipal or justice court. TEX. CODE CRIM. PROC. ANN. arts. 45.001, .018

(Vernon 2006); see also State v. Boseman, 830 S.W.2d 588, 590 n.3 (Tex. Crim.



                                         10
App. 1992) (“[M]unicipal courts are relatively unique, in that a prosecution in a

municipal court is sufficient to support a conviction, on a complaint alone, without

an information being filed.”). A “complaint” may also serve as a basis for a

probable cause finding for an arrest warrant or “serve as a basis for the issuance of

an information or commencement of the indictment process.”           Boseman, 830

S.W.2d at 590 n.3; Gordon v. State, 801 S.W.2d 899, 916 (Tex. Crim. App. 1990)

(noting distinction between complaint used to support warrant and complaint used

as charging instrument).

      Although an indictment or information charging a defendant with the

commission of a Class A or B misdemeanor must be supported by an underlying

complaint, it is the “presentment of an indictment or information to a court [that]

invests the court with jurisdiction of the cause.” TEX. CONST. art. V, § 12(b); see

TEX. CODE CRIM. PROC. ANN. art. 21.22 (Vernon 2009). A trial court that “finds

fault with an information or indictment does not ‘dismiss’ the complaint on which

the indictment or information was based, but sets aside the information or

indictment.” Boseman, 830 S.W.2d at 590 n.3. And, again, article 12.02(a), in

regard to Class A and B misdemeanor offenses, specifically requires that an

“indictment or information,” and not a complaint, be presented within two years

from the date of the commission of the offense.




                                         11
      The case law concerning article 12.05 predates the legislature’s 2009 rewrite

of article 12.02 and is limited. Nevertheless, courts have previously held that a

Class B misdemeanor complaint standing alone, without the timely presentation of

an indictment or information within the limitations period, “does not trigger article

12.05(b).” Marbach v. State, 773 S.W.2d 411, 412 (Tex. App.—San Antonio

1989, no pet.); see State v. Edwards, 808 S.W.2d 662, 663 (Tex. App.—Tyler

1991, no pet.).

      In Edwards, the State filed, within the limitations period, an affidavit in

which the affiant accused the defendant of the Class B misdemeanor offense of

theft. 808 S.W.2d at 663. After the limitations period had expired, the State filed a

complaint and an information, formally accusing the defendant of the offense. Id.

The State argued that the filing of its affidavit tolled the limitations period because

it met the requirements of a “complaint.” Id. (citing TEX. CODE CRIM. PROC. ANN.

arts. 12.05, 15.05). The court explained that an affidavit made in support of an

arrest warrant significantly differs from that required to support an information

because an arrest warrant “may be procurable upon evidence insufficient or

incompetent to support an information necessary to bring the accused to trial.” Id.

Thus, the court held that article 12.05 serves “only to stay the running of the

limitation period during the pendency of the type of accusatory pleading

appropriate to invoke the jurisdiction of a court of competent jurisdiction,” which



                                          12
is one that has jurisdiction of the offense. Id. It noted that because the State was

attempting to charge the defendant with a Class B misdemeanor in a county court,

“both a complaint and information [were] necessary to confer jurisdiction.” Id.

And a “filed misdemeanor complaint without a filed misdemeanor information

[did] not suffice to toll the running of limitations under article 12.05.” Id.

      Acknowledging Edwards, the State nevertheless argues that “the filing of a

complaint, charging a defendant with a felony or with a misdemeanor involving

official misconduct, would be sufficient to toll the statute of limitations if the

complaint had been filed in a ‘court of competent jurisdiction.’” In support of this

argument, the State relies on Bonner v. State, 832 S.W.2d 134 (Tex. App.—

Amarillo 1992, pet. ref’d). In Bonner, although the State filed, in the district court

and within the limitations period, a complaint charging the defendant with the

felony offense of delivery of a controlled substance, an indictment was not

returned until after the limitations period had expired. Id. at 135. The defendant

argued that the filing of the complaint, standing alone, was insufficient to toll the

running of the statute of limitations. Id.

      The Amarillo Court in Bonner noted that in Ex parte Ward, the Texas Court

of Criminal Appeals held that a complaint filed in a justice court did not toll the

statute of limitations for a felony offense because the justice court, although it had

authority to take a complaint and issue an arrest warrant, “did not have jurisdiction



                                             13
of the felony offense charged . . . so as to come within the ambit of article 12.05.”

Id. (quoting Ward, 560 S.W.2d 660, 662 (Tex. Crim. App. 1978)). The Amarillo

Court reasoned, without explanation, that “[i]mplicit in” the holding in Ward was a

“conclusion that if the complaint had been filed in a court of competent

jurisdiction, i.e., the district court, the holding would have been different.” Id.

And it held that the filing of the complaint in the district court, which was the

“court of competent jurisdiction” to try the felony offense at issue, “was sufficient

to invoke the jurisdiction of that court and to toll the limitation period.” Id. at 137.

It further concluded, again without explanation, that Edwards was distinguishable

in that it “dealt with the different requisites in a misdemeanor case,” which were

not applicable to the felony case before it. Id.

      As noted above, the time “during the pendency of an indictment,

information, or complaint shall not be computed in the period of limitation.” TEX.

CODE CRIM. PROC. ANN. art. 12.05(b). “[D]uring the pendency” means the “period

of time beginning with the day the indictment, information, or complaint is filed in

a court of competent jurisdiction . . . .” Id. art. 12.05(c). And the Texas Court of

Criminal Appeals has held that “for purposes of Article 12.05, a court of competent

jurisdiction is a court with jurisdiction to try the case.” State v. Hall, 829 S.W.2d

184, 187 (Tex. Crim. App. 1992).         Again, however, nothing in article 12.05

relieves the State of its obligation under article 12.02(a) to first timely present an



                                          14
appropriate charging instrument for Class A and B misdemeanor offenses, i.e.,

either “an indictment or information.”

      Moreover, the court of criminal appeals and this Court have further

explained that a “court of competent jurisdiction” means a “court that has

jurisdiction of the offense,” and the elements essential to that jurisdiction are: (1)

authority over the person, (2) authority over the subject matter, and (3) power to

enter a judgment. See Ward, 560 S.W.2d at 661–62; Hall, 794 S.W.2d at 919.

Courts may lack jurisdiction for different reasons. For instance, in Ward, the

justice court in which the complaint was filed lacked jurisdiction over the felony

offense presented, or the “subject matter.” 560 S.W.2d at 662; Hall, 794 S.W.2d at

919 (noting “subject matter” refers to offense).

      Here, the criminal district court, in regard to the Class A misdemeanor

offense of official oppression, lacked jurisdiction to enter a judgment on the

instrument upon which the State relied to toll limitations, i.e., a complaint. See

Hall, 794 S.W.2d at 919 (requiring power to enter judgment); see also TEX.

CONST. art. V, § 12(b) (providing “presentment of an indictment or information to

a court invests the court with jurisdiction of the cause” (emphasis added)). Thus,

the State’s September 9, 2013 complaint, standing alone without a timely filed

information or indictment, did not toll the statute of limitations. See TEX. CONST.




                                         15
art. V, § 12(b); TEX. CODE CRIM. PROC. ANN. 12.02(a); Hall, 829 S.W.2d at 187;

Ward, 560 S.W.2d at 661–62; Hall, 794 S.W.2d at 919.

      Again, article 12.02(a), as now rewritten in 2009 by the Texas Legislature,

expressly states that an “indictment or information for any Class A or Class B

misdemeanor may be presented within two years from the date of the commission

of the offense, and not afterward.” TEX. CODE CRIM. PROC. ANN. art. 12.02(a)

(emphasis added). Because the State did not present in the criminal district court

an indictment or information against appellee for the Class A misdemeanor offense

of official oppression within two years from the date of the commission of the

offense, i.e., by September 10, 2013, it could not do so afterward.            Id.

Accordingly, we hold that the criminal district court did not err in granting

appellee’s motion to quash and dismiss the October 24, 2014 indictment.

      We overrule the State’s three issues.

                                    Conclusion

      We affirm the order of the criminal district court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Bland, and Brown.

Publish. TEX. R. APP. P. 47.2(b).

                                         16
