                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-16-00203-CR

THE STATE OF TEXAS,
                                                                    Appellant
    v.

MARK ANTHONY ALVEAR,
                                                                    Appellee



                         From the County Court at Law No. 1
                              McLennan County, Texas
                            Trial Court No. 2016-0491-CR1


                              MEMORANDUM OPINION

         The State appeals the trial court’s order granting Appellee Mark Anthony Alvear’s

second motion to dismiss and application for writ of habeas corpus.1 We will reverse.

                                            Background

         This is the second appeal in this case. The first appeal was filed by Alvear after

the trial court denied his first motion to quash information, motion to dismiss, and


1
  The motion is entitled “Defendant’s Second Motion to Quash Information, Motion to Dismiss, and
Application for Writ of Habeas Corpus.” The trial court’s order granted only the motion to dismiss and
the application for writ of habeas corpus and did not address the motion to quash.
application for writ of habeas corpus. The underlying facts are set out in our previous

opinion:

                Appellant Mark Alvear was charged by information with driving
        while intoxicated. The information, filed on August 13, 2012, alleged that
        Alvear, “on or about the 14th day of July, A.D. 2012, did then and there
        operate a motor vehicle in a public place while the said defendant was
        intoxicated.” The State subsequently filed a motion to dismiss the cause,
        giving the reason: “officer deployed to Afghanistan, will refile upon his
        return.” On November 30, 2012, the trial court signed an order dismissing
        the cause.
                On August 25, 2014, Alvear was again charged by information with
        driving while intoxicated. The information again alleged that Alvear, “on
        or about the 14th day of July, A.D. 2012, did then and there operate a motor
        vehicle in a public place while the said defendant was intoxicated.” Alvear
        filed a motion to quash and dismiss the information and application for writ
        of habeas corpus. Alvear claimed that the State failed to file the information
        within the two-year statute of limitations. Despite the information's lack of
        tolling facts, Alvear also argued that the statute of limitations was never
        tolled under article 12.05(b) of the Code of Criminal Procedure. TEX. CODE
        CRIM. PROC. ANN. art. 12.05(b) (West 2015) (“The time during the pendency
        of an indictment, information, or complaint shall not be computed in the
        period of limitation.”).
                The trial court held a hearing on December 3, 2014, and then took the
        matter under advisement. On December 4, 2014, the State filed a motion to
        amend the information to include that “during the period from August 13,
        2012 until December 4, 2012, an information charging the above offense was
        pending in a court of competent jurisdiction, to-wit: cause number
        20123161CR1 in the County Court at Law Number 1 of McLennan County,
        Texas, styled the State of Texas vs. Mark Anthony Alvear Jr.” On December
        9, 2014, the trial court denied the motion to quash and dismiss the
        information and application for writ of habeas corpus. No action was taken
        on the State's motion to amend the information.

Ex parte Alvear, 524 S.W.3d 261, 262–63 (Tex. App.—Waco 2016, no pet.) (Alvear I).

We concluded:

        The trial court therefore erred in denying Alvear’s application for writ of
        habeas corpus because the information shows on its face that prosecution
        is barred by the statute of limitations and that the information is not
        reparable. See [Ex parte] Smith, 178 S.W.3d [797] at 799, 804 [(Tex. Crim.

State v. Alvear                                                                          Page 2
        App. 2005)]. We sustain Alvear’s second issue in part, reverse the trial
        court’s order denying Alvear’s application for writ of habeas corpus, grant
        habeas relief, and dismiss the information and prosecution.

Id. at 266-67. The State did not pursue a petition for discretionary review.

        Four days after our opinion issued, the State filed a third information against

Alvear alleging the same facts as in the previous two informations, but also including

tolling paragraphs, which state:

               And it is further presented in and to said Court that during the
        period from August 13, 2012 until November 30, 2012, the statute of
        limitations was tolled by the pendency of an information in a court of
        competent jurisdiction charging the Defendant with the above offense to-
        wit: cause number 20123161CR1 in the County Court at Law Number 1 of
        McLennan County Texas, Styled the State of Texas v. Mark Anthony Alvear
        Jr.

               And it is further presented in and to said Court that during the
        period from August 25, 2014 until March 10, 2016, the statute of limitations
        was tolled by the pendency of an information in a court of competent
        jurisdiction charging the Defendant with the above offense to-wit: cause
        number 20142914CR2 in the County Court at Law Number 2 of McLennan
        County Texas, Styled the State of Texas vs. Mark Anthony Alvear Jr.

Alvear then filed his second motion to quash information, motion to dismiss, and

application for writ of habeas corpus challenging the third information. After a hearing,

the trial court granted Alvear’s application for writ of habeas corpus and motion to

dismiss.

                                          Issues

        The State presents one issue—the trial court erred in granting Alvear’s motion to

dismiss and application for writ of habeas corpus because the third information filed

against Alvear was not barred by the statute of limitations. In response, Alvear argues


State v. Alvear                                                                        Page 3
that the trial court did not abuse its discretion in granting his motion and that the trial

court’s order should be affirmed because: (1) the statute of limitations was not tolled

while the first and second informations were pending because a trial court never found

them invalid; (2) as we previously found the second information invalid and not

reparable, the State could not “revive” the charge against him by including tolling

allegations in the third information; and (3) the trial court could have based its ruling

upon grounds other than the statute of limitations.

                                   Standard of Review

        We review the dismissal of a charging instrument under a bifurcated standard.

State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011). We give almost total

deference to a trial court’s findings of fact that are supported by the record, as well as

mixed questions of law and fact that rely upon the credibility of a witness. Id. However,

we apply a de novo standard of review to pure questions of law and mixed questions that

do not depend upon credibility determinations. Id. A de novo review is appropriate

because the issue in this case involves a pure question of law and is not based upon facts

or the credibility of witnesses. See Ahmad v. State, 295 S.W.3d 731, 739 (Tex. App.—Fort

Worth 2009, pet. ref’d).

                                        Analysis

        Alvear argues that limitations was not tolled while either the first or second

information was pending because neither was found to be invalid. Historically, common

law provided no limit on the time within which an offense might be prosecuted. Vasquez

v. State, 557 S.W.2d 779, 781 (Tex. Crim. App. 1977) (overruled on other grounds by

State v. Alvear                                                                      Page 4
Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998)). Once a legislature enacts a statute

of limitations, an indictment or information is barred if not filed within the time specified.

Id. 783. If presented in a timely manner, however, the “cause may be continued from

time to time indefinitely,” subject to the requirement that the State exercise due diligence

in obtaining and presenting a formal accusation. Id.; see also Hernandez v. State, 127 S.W.3d

768, 772 (Tex. Crim. App. 2004). A statute of limitations is, therefore, tolled while a valid

indictment or information remains pending. Vasquez, 557 S.W.2d at 783. The time from

the filing of the first information in this case until it was dismissed was, therefore, tolled.

Alvear’s argument to the contrary is without legal basis.

        Also historically, an invalid indictment or information did not toll limitations.

Vasquez, 557 S.W.2d at 783-84; see also Hernandez, 127 S.W.3d at 772. Article 12.05 of the

Texas Code of Criminal Procedure was enacted to ameliorate this circumstance,

providing that limitations will be tolled during the pendency of an “indictment,

information, or complaint. . . .” TEX. CODE CRIM. PROC. art. 12.05(b) (West 2015); see also

Ex parte Ulloa, 514 S.W.3d 756, 758 (Tex. Crim. App. 2017).2 Article 12.05(c) defines




2
 Although there is little in the way of legislative history, certain comments reflect the legislature’s concern
that defendants charged under faulty indictments could not be prosecuted because the statute of limitations
had run. Hernandez, 127 S.W.3d at 771.

        The fact that many indictments, informations, and complaints are now being held invalid
        because of procedural errors and defects in form that have nothing to do with the guilt or
        innocence of the persons charged, and persons guilty of capital, as well as other crimes,
        are going unpunished and will continue to do so under our present laws, creates an
        emergency and an imperative public necessity requiring that the Constitutional Rule
        providing that bills be read on three separate days be suspended, and also that the
        Constitutional Rule which provides that laws shall not become effective until the
        expiration of ninety days after the adjournment of the session be suspended, and such

State v. Alvear                                                                                         Page 5
“during the pendency” as “that 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. at art. 12.05(c). This article has been largely

unchanged since it was enacted in 1941. Vasquez, 557 S.W.2d at 783.

        We are to give effect to the plain meaning of a statute unless it is ambiguous or the

plain meaning leads to an absurd result that the legislature could not have possibly

intended. Ulloa, 514 S.W.3d at 758. The language of art. 12.05(c) is not ambiguous—the

phrase “during the pendency” means that a charging instrument will toll limitations until

it is found to be invalid. Therefore, it makes no difference whether a charging instrument

is ultimately determined to be faulty or valid—the statute of limitations is tolled so long

as the instrument remains pending before a court of competent jurisdiction. Ahmad, 295

S.W.3d at 740. We conclude that limitations was also tolled in this case from the time the

second information was filed until it was dismissed by this Court.3 Therefore, the statute

of limitations had not run prior to the filing of the third information.



        Rules are hereby suspended, and this Act shall be in full force and effect from and after its
        passage, and it is so enacted.

Vasquez, 557 S.W.2d at 784 n. 7 (citing Acts 1941, 47th Leg., R.S. ch. 603, 1941 Tex. Gen. Laws 1335 cmt.).

3
 While the statute specifically notes that a charging instrument remains pending until found to be invalid
by a trial court, other courts have expanded this term to include “a court with jurisdiction.” See Green v.
State, No. 14-08-00075-CR, 2009 WL 136917 at *4 n.3 (Tex. App.—Houston [14th Dist.] Jan. 20, 2009, no pet.)
(mem. op., not designated for publication); see also Rodriguez v. State, No. 08-02-00342-CR, 2003 WL
21761740, at *4 (Tex. App.—El Paso July 31, 2003, no pet.) (op., not designated for publication). If we follow
the literal language of art. 12.05, tolling continues as the second information has not been found invalid by
a trial court. If we determine that any court with jurisdiction, including an appellate court, can halt the
tolling of limitations by finding a charging instrument invalid, then limitations began to run after we found

State v. Alvear                                                                                         Page 6
        Additionally, although we determined in Alvear I that the second information was

invalid because it did not include the appropriate tolling language, we did not hold that

the State was barred from presenting another information against Alvear. If a motion to

quash or set aside a charging instrument is sustained, the State may still initiate new

proceedings so long as the statute of limitations has not run. See State v. Fass, 846 S.W.2d

934, 935 (Tex. App.—Austin 1993, no pet.) (per curiam); see also TEX. CODE CRIM. PROC.

ANN. art. 28.04 (West 2006) (“If the motion to set aside or the exception to an indictment

or information is sustained, the defendant in a misdemeanor case shall be discharged, but

may be again prosecuted within the time allowed by law.”).

        Finally, Alvear argues that allowing the State to file a succession of informations

or indictments against an accused would allow the State “to perpetually postpone

prosecution without accountability.” Alvear contends that this would lead to absurd

results and that it would violate his rights to a speedy trial, to be protected from undue

delay by the State, to be protected from double jeopardy, and to due process of law. We

may uphold a trial court’s ruling if it is correct under any theory of applicable law. Ex

parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017); see also Alford v. State, 400 S.W.3d

924, 929 (Tex. Crim. App. 2013). Statutes of limitation are not the only means of redress

available to an accused who challenges a delay in prosecution. Krizan-Wilson, 354 S.W.3d

at 814.    In appropriate circumstances, an accused may challenge oppressive delay

through speedy trial and due process protections found in the United States and state



the second information invalid. In either event, the statute of limitations was effectively tolled prior to the
filing of the third information.

State v. Alvear                                                                                         Page 7
constitutions and statutes. See State v. Harbor, 425 S.W.3d 508, 513-14 (Tex. App.—

Houston [1st Dist.] 2012, no pet.) (trial court has authority to dismiss charging instrument

with prejudice without consent of State in order to protect defendant from violations of

right to speedy trial, due process, double jeopardy, or other constitutional violations); see

also State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003). However, such errors

are subject to a harm analysis unless they involve federal constitutional errors labeled by

the United States Supreme Court as “structural.” Lake v. State, 532 S.W.3d 408, 411 (Tex.

Crim. App. 2017); see also Mercier v. State, 322 S.W.3d 258, 263 (Tex. Crim. App. 2010)

(harm analysis required for other than structural errors); TEX. RULE APP. PROC. 44.2(a).

Structural errors identified by the Supreme Court include: denial of counsel, bias of a

trial judge, racial discrimination in the selection of grand jury, denial of self-

representation at trial, denial of a public trial, and delivery of a defective reasonable-

doubt instruction. See Neder v. U.S., 527 U.S. 1, 8, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35

(1999). None of the issues raised by Alvear are structural, and the record does not reflect

any allegations of harm by Alvear.4 We find no other basis to support the trial court’s

ruling.

          We sustain the State’s sole issue and hold that the trial court erred in dismissing

the third information. Accordingly, we reverse the order granting Alvear’s motion to

dismiss and application for writ of habeas corpus and remand this case to the trial court

for further proceedings consistent with this opinion.




4
    Our opinion does not preclude Alvear from raising such issues in the trial court upon remand.

State v. Alvear                                                                                     Page 8
                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,*
        Justice Davis, and
        Justice Scoggins
        *(Chief Justice Gray concurs in the Court’s judgment to the extent that it reverses
the trial court’s order of dismissal and remands this proceeding to the trial court. A
separate opinion will not issue, but Chief Justice Gray provides the following note:
        After more than a month of intermittent study of the draft opinion, punctuated by
long periods of engrossed research and study of the relevant law and conducting
extensive additional research, I have determined that I must now concur in the Court’s
judgment. The result of this appeal, however, has caused me to revisit the Court’s
decision in Alvear I. See Ex parte Alvear, 524 S.W.3d 261 (Tex. App.—Waco 2016, no pet.).
It deserved more study on my part. It was a deceptively simple resolution to the forced
confluence of several lines of cases involving the nature of a statute of limitations,
required averments in charging instruments and the difference thereof for informations
versus indictments, jurisdiction of the trial court based on the charging instrument, and
jurisdiction of the appellate court versus cognizability of an issue on appeal from the
denial of an application for a writ of habeas corpus. But what I fundamentally failed to
digest was how the development of the law from the line of Proctor, Phillips, and Heilman
intersected with the holding in Smith upon which we relied so heavily. See Ex parte
Heilman, 456 S.W.3d 159 (Tex. Crim. App. 2015); Phillips v.State, 362 S.W.3d 606 (Tex.
Crim. App. 2011); Ex parte Smith, 178 S.W.3d 797 (Tex. Crim. App. 2005); Proctor v. State,
967 S.W.2d 840 (Tex. Crim. App. 1998). Alvear I was the appropriate case in which to
address the question the Court of Criminal Appeals left open in Doster. See Ex parte
Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010). There, the Court stated, “we need not
resolve whether pretrial habeas remains a viable avenue for raising a limitations
challenge or whether pretrial habeas can ever be used to raise a mere statutory claim.”
Id. at 725. I will not, at this juncture, endeavor to redo that which has been done. I write
this note only to caution the careful researcher that I would look with fresh eyes upon the
issue left unresolved in Doster and as presented in Alvear I. I may no longer be able to
agree that the issue is cognizable on an appeal from the denial of an application for a writ
of habeas corpus from an information that contains no tolling language, particularly when
the record supports the potential that limitations may have been tolled.)
Reversed and remanded
Opinion delivered and filed August 22, 2018
Do not publish
[CR25]


State v. Alvear                                                                       Page 9
State v. Alvear   Page 10
