                                 NO. 07-06-0014-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL C

                                 JULY 12, 2006
                        ______________________________

                        GERALD L. RICHARDS, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE
                      _________________________________

       FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

             NO. 2005-494,592; HONORABLE DRUE FARMER, JUDGE
                      _______________________________


Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                             MEMORANDUM OPINION


      Appellant, Gerald L. Richards, appeals his conviction for possession of marihuana,

in an amount less than two ounces. For the reasons stated herein, we reverse the trial

court’s judgment.
       On June 21, 2005, appellant was charged, by information, with the offense of

misdemeanor possession of marihuana.1           The information alleged that the offense

occurred on or about May 1, 2003; however, it did not allege facts that would toll the two-

year statute of limitations applicable to misdemeanor offenses. Prior to trial, appellant filed

a Motion to Quash and Exception to Substance of Information alleging that prosecution for

the offense alleged in the information was barred by limitations. The State filed a response

to appellant’s motion alleging that limitations were tolled during the pendency of a prior

information for the same offense. Without holding a hearing, the trial court denied

appellant’s motion.


       Subject to a plea agreement, appellant subsequently pled guilty to the offense and,

in accordance with the terms of the plea agreement, was sentenced to 90 days

incarceration in the Lubbock County Jail, probated for a period of 12 months, and a fine

of $200. Following entry of judgment, appellant filed notice of appeal. The trial court

certified that appellant has the right to appeal matters raised by written pre-trial motions.


       By one appellate issue, appellant contends that prosecution for the possession

offense was barred by the applicable statute of limitations.




       1
       It is a Class B misdemeanor offense to knowingly or intentionally possess a
useable quantity of marihuana in an amount less than two ounces. TEX . HEALTH & SAFETY
CODE ANN . § 481.121 (Vernon 2003).

                                             -2-
       Generally speaking, the statute of limitations contained in Chapter 12 of the Texas

Code of Criminal Procedure insulates individuals from prosecution after the passage of an

express period of time following the alleged commission of an offense. Proctor v. State,

967 S.W.2d 840, 843 (Tex.Crim.App. 1998).            Specifically, Texas Code of Criminal

Procedure article 12.02 provides that, “[a]n indictment or information for any 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 (Vernon 2005). The Texas Court of

Criminal Appeals has indicated that limitations is a defense that must be specifically

asserted by a defendant, at or before the guilt/innocence stage of trial, or it is waived. See

Proctor, 967 S.W.2d at 844. However, once the defendant raises the defense, the burden

then shifts to the State to prove that the prosecution is not barred by limitations. See id.


       In the present case, appellant properly raised the defense of limitations. Appellant

presented sufficient evidence of the application of limitations in this case by referencing the

information which, on its face, evidenced that prosecution was limitations-barred. The

State’s response correctly contended that limitations are tolled while a prior information is

pending for the same offense. See TEX . CODE CRIM . PROC . ANN . art. 12.05(b) (Vernon

2005); McAlister v. State, 119 S.W.3d 460, 462 (Tex.App.–Fort Worth 2003, no pet.).

However, the State failed to submit any evidence of the pendency of a prior information

relating to the possession offense nor did the State request the trial court to take judicial

notice of any prior information contained in the court’s files. Because no hearing was held

on appellant’s motion, the record reflects that the State failed to provide any evidence that

                                             -3-
the limitations period applicable to the June 21, 2005 information was tolled by the

pendency of a prior information charging appellant with the same offense.2 As this

information was limitations-barred on its face and as the State has failed to provide

evidence that the limitations period was tolled, we conclude that the trial court erred in

denying appellant’s Motion to Quash and Exception to Substance of Information.


       Accordingly, we reverse the trial court’s judgment and remand this case to the trial

court for further proceedings consistent with this opinion.




                                                  Mackey K. Hancock
                                                      Justice


Do not publish.




       2
          In an attempt to supplement the appellate record, the State provided this Court a
copy of the contents of the court’s file in cause number 2003-484127, which does include
a prior information filed, on May 9, 2003, against appellant for the instant offense. Also
included is an order dismissing cause number 2003-484127, signed on May 20, 2004.
However, because our review is limited to the record made in the trial court and presented
to us in the appellate record, we cannot and do not consider this additional evidence which
was not presented to the trial court. See Cerda v. State, 644 S.W.2d 875, 877
(Tex.App.–Amarillo 1982, no pet.).

                                            -4-
