                              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 .



        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). W e will not repeat them here except
to explain the basic reasons for our holding. T EX . R. A PP . P. 47.1, 47.4.

        2
          Mercier argues that the trial court erred by overruling the following m otions, all raising the sam e
argum ents: (1) his application for a pretrial writ of habeas corpus; (2) his m otion to reconsider the denial of
his application for a pretrial writ of habeas corpus; (3) his m otion to acquit based on lim itations; and (4) his
renewal of the m otion to acquit based on lim itations. The State does not dispute that these m otions and
rulings preserved Mercier’s issue for our review.
                                                        2
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

                                                3
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.



                                               4
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


        3
          Mercier filed a supplem ental appellant’s brief shortly before oral argum ent in this case, notifying this
Court of the Tita decision. The State has m oved to strike this brief, arguing that Mercier failed to obtain
perm ission to file his supplem ental brief and that the brief does not com ply 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 im portantly, however, the
supplem ental brief m erely brings to our attention a change in the law since the filing of the original briefs,
which could have been m erely included in a letter brief to this Court. W e would be required to consider the
new law raised in the supplem ental brief even if it had not been brought to our attention by Mercier.
Accordingly, we deny the State’s m otion and will consider the brief. W e note that at oral argum ent, we granted
the State leave to file a supplem ental brief addressing the recent changes in the law. The State has not done
so.



                                                         5
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. DAW SON , 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




                                               6
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


          4
              That section provides:

          There is no exception to the substance of an indictm ent or inform ation except:

         1.         That it does not appear therefrom that an offense against the law was com m itted by
                    the defendant;

         2.         That it appears from the face thereof that a prosecution for the offense is barred by
                    a lapse of tim e, or that the offense was com m itted after the finding of the indictm ent;

         3.         That it contains m atter 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.

T EX . C OD E C R IM . P R O C . A N N . art. 27.08 (Vernon 2006).

         5
              That section provides:

         Exceptions to the form of an indictm ent or inform ation m ay 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 em paneled grand jury.

Id. art. 27.09 (Vernon 2006).




                                                                7
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



                                              8
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. DAW SON , 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



           6
             In Sanchez, the San Antonio Court of Appeals noted that in Vela v. State, this Court applied the
Adams analysis to a defective indictm ent that failed to allege an elem ent 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. D IX & R. D A W S O N , 41 T EXAS P R AC TIC E :
C R IM IN AL P R AC TIC E AN D P RO CED UR E § 21.147 (2nd ed. Supp. 2008). W e need not determ ine whether Vela
correctly characterized the defect as one of form or substance, as that issue is not now before the Court.
W hether correct or incorrect, this Court characterized the defect as one of form , fram ing 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 sam e harm analysis to defect of
substance).



                                                             9
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.

DAW SON , 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. DAW SON , 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




                                            10
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. DAW SON , 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

        8
          The 2007-2008 Supplem ent issued in Novem ber 2007 does not reflect this change, but it is available
in the electronic updates published on W estlaw at 41 TXPRAC § 21.147.



                                                     11
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




                                               12
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.




                                           13
