

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
Alexander Hernandez
Appellant
Vs.                   No.
11-01-00063-CR -  Appeal from Dallas County
State of Texas
Appellee
 
After the
trial court overruled his motion to quash the indictment and his motion to
suppress evidence, Alexander Hernandez entered a plea of guilty pursuant to a
plea bargain.  The trial court then found
him guilty of possessing more than four grams of methamphetamine and sentenced
him pursuant to the plea bargain: 
confinement for 5 years (probated) and a fine of $1,500 (not probated).  This appeal has been perfected under
TEX.R.APP.P. 25.2(b)(3) to challenge the trial court=s rulings on the two written pretrial
motions.  We reverse the conviction,
sustain the motion to quash the indictment, and dismiss the cause.
                                                                   Points
of Error
Appellant
argues in his first point of error that the statute of limitations had run on
this offense and that the trial court erred in overruling his motion to quash
the indictment.  Our ruling on this
point is dispositive; consequently, the second point of error will not be
discussed.[1]  See TEX.R.APP.P. 47.1 which requires
appellate opinions to be Aas brief as practicable@ and to discuss only the issues which are Anecessary to final disposition of the appeal.@
                                                              The
Two Indictments
The
original indictment was filed on July 24, 1997, and it charged that on or about
July 19, 1997, appellant did:
[U]nlawfully, knowingly and intentionally
possess a controlled substance, to-wit: 
AMPHETAMINE, in an amount by aggregate weight, including any adulterants
or dilutants, of 4 grams or more but less than 400 grams.




 
The second
indictment was filed on September 27, 2000, and it charged that on or about
July 19, 1997, appellant did:
[U]nlawfully, knowingly and intentionally
possess a controlled substance, to-wit: 
METHAMPHETAMINE, in an amount by aggregate weight, including any
adulterants or dilutants, of 4 grams or more but less than 200 grams.[2]
 
                                                Hearing
on Motion to Quash Indictment
Appellant
testified at the hearing on his motion to quash the second indictment that he
had not been outside the State of Texas at any time since July 24, 1997, and
that he had been incarcerated in this state during part of that time.  Appellant rested, and the State asked the
trial court to take judicial notice of the first indictment.  Appellant=s attorney then argued that the first indictment was for a different
offense than the second indictment, and his argument to the trial court reads
as shown:
It=s our contention [the second indictment is] barred by the statute of
limitations.  The cases I read, Judge,
is if a person is charged under one statute and they come back and reindict
them under that same statute, the first one holds the running of the statute
[of limitations].
 
Now, were
possession of amphetamine and possession of methamphetamine the same penal
statute, we wouldn=t be
here.  
 
                                                           *    *   
*
 
It=s our position here that they have indicted
[appellant] under one statute.  And then
three years after that happened, they indict him for the same offense under
another statute.  It=s not the same penal law.  And
this new one is barred by The Statute of Limitations.  (Emphasis added)
 
The
prosecuting attorney then replied that Aamphetamine@ and Amethamphetamine@ are within the same penal statute and that the motion to quash should
be denied.
                                                              Controlling
Authority




TEX. CODE
CRIM. PRO. ANN. art. 12.05(b) (Vernon 1977) provides that: AThe time during the pendency of an
indictment...shall not be computed in the period of limitation.@  The
Court of Criminal Appeals held in Ex parte Slavin, 554 S.W.2d 691, 693
(Tex.Cr.App.1977), that the statute of limitations was tolled by the first
indictment when the second indictment Awas brought under the
 same penal statute as the first.@  See
also Prince v. State, 914 S.W.2d 672, 674 (Tex.App. - Eastland 1996, pet=n ref=d).
The Court
of Criminal Appeals held in Watson v. State, 900 S.W.2d 60, 62
(Tex.Cr.App.1995), that:
[T]he Legislature intended to make possession
of each individual substance within the same penalty group a separate
and distinct offense.  (Emphasis in
original)
 
In Nichols
v. State, 52 S.W.3d 501, 503 (Tex.App. - Dallas 2001, no pet=n), the Dallas Court of Appeals discussed a
problem similar to the one before us:
If possession of each individual substance
within a penalty group was the same statutory offense, the State could amend an
indictment over objection, interchanging among any one of the nine
subsections and over one hundred complex chemical structures individually
composing Penalty Group 1, at will. 
This would directly contravene the statutory intent of the legislature
as discussed in Watson [supra].
 
We hold
that possession of each individual substance within the same penalty group
constitutes a different statutory offense. 
(Emphasis in original)
 
In the
case now before us, the two controlled substances are not even within the same penalty
group.  Methamphetamine is listed in APenalty Group 1" while amphetamine is
listed in APenalty Group 2.@  See
TEX. HEALTH & SAFETY CODE ANN. '' 481.102(6) & 481.103(a)(3) (Vernon  Pamph. Supp. 2002). 
Moreover, the punishments are set by different provisions of the
Code.  See TEX. HEALTH & SAFETY CODE
ANN. '' 481.112 & 481.113 (Vernon Pamph. Supp.
2002).  Consequently, we hold that the
second indictment did not charge the same offense which was charged by the
first indictment.  Therefore, the second
indictment is barred by the three-year statute of limitations.  See TEX. CODE CRIM. PRO. ANN. art. 12.01
(Vernon Supp. 2002).  The first point of
error is sustained.
                                                                This
Court=s Ruling
The
judgment of conviction is reversed; the motion to quash the indictment is
sustained; and the indictment is dismissed.
     
BOB
DICKENSON
SENIOR
JUSTICE
 
March 14, 2002
Publish.  See TEX.R.APP.P. 47.3(b).
Panel consists of:  Wright, J., and
McCall, J., and Dickenson, S.J.[3]
 
 
[1]Appellant argues in this point that the trial court
erred in overruling his motion to suppress evidence which was seized without a
warrant.
2This indictment also charged that Aan indictment charging the above offense was pending in
a court of competent jurisdiction@
from July 24, 1997, until September 20, 2000. 
3Bob Dickenson, Retired Justice, Court of Appeals, 11th
District of Texas at Eastland sitting by assignment. 
 




[1]Appellant argues in this point that the trial court
erred in overruling his motion to suppress evidence which was seized without a
warrant.


[2]This indictment also charged that Aan indictment charging the above offense was pending in
a court of competent jurisdiction@
from July 24, 1997, until September 20, 2000. 


[3]Bob Dickenson, Retired Justice, Court of Appeals, 11th
District of Texas at Eastland sitting by assignment.


