                                  NO. 07-10-00369-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     JULY 31, 2012


                            LONNIE MOORE, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


          FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

          NO. 2010-460,904; HONORABLE LARRY B. "RUSTY" LADD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Appellant Lonnie Moore appeals his conviction for misdemeanor assault and

sentence of confinement for one year in the county jail. We will affirm.


                                       Background


      A November 7, 2006, indictment in the 140th District Court of Lubbock County

charged appellant with the September 8, 2006, aggravated assault with a deadly

weapon1 of Mais and Smith. On May 19, 2010, a complaint and information were filed


      1
          See Tex. Penal Code Ann. § 22.02 (West 2011).
against appellant in County Court at Law Number One of Lubbock County.              The

complaint charged appellant with the misdemeanor assault2 of Mais based on the

events alleged in the November 2006 indictment. On the State’s motion, the trial court

in August 2010 authorized amendment of the information to include the following tolling

paragraph:


      And it is further presented in and to said court that during a period from
      November 7, 2006 until today’s date, an indictment charging the above
      offense was pending in a court of competent jurisdiction, to-wit: cause
      number 2006-414,421 in the 140th District Court of Lubbock County,
      Texas, styled the State of Texas vs. Lonnie Moore.

      Trial on the amended information was to the bench, which found appellant guilty

of the charged offense and assessed the punishment noted. This appeal followed.


                                       Analysis


      Through one issue, appellant argues the trial court’s judgment convicting him of

misdemeanor assault is void because the statute of limitations was not tolled during the

pendency of the 2006 indictment for aggravated assault with a deadly weapon.


      A statute of limitations protects one accused of crime “from having to defend

themselves 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)

(citing Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d

156 (1970)). The limitations period for misdemeanor assault and aggravated assault is


      2
          See Tex. Penal Code Ann. § 22.01(a) (West 2011).
                                           2
two years. See Tex. Code Crim. Proc. Ann. art. 12.02(a) (West Supp. 2011)

(misdemeanor offenses) and art. 12.03(d) (West 2005) (aggravated offenses).


       “The rules with respect to allegations in an indictment and the certainty required

apply also to an information.” Tex. Code Crim. Proc. Ann. art. 21.23 (West 2009). “[A]

judgment is void only in very rare situations-usually due to a lack of jurisdiction. . . . A

judgment of conviction for a crime is void when the document purporting to be a

charging instrument . . . does not satisfy the constitutional requisites of a charging

instrument, thus the trial court has no jurisdiction over the defendant[.]” Nix v. State, 65

S.W.3d 664, 668 (Tex.Crim.App. 2001) (footnote omitted). A charging instrument must

reflect on its face that the prosecution is not barred by limitations. Tita v. State, 267

S.W.3d 33, 38 (Tex.Crim.App. 2008) (citing Tex. Code Crim. Proc. Ann. art. 21.02(6)).

A defendant may challenge the jurisdiction of the trial court “if the face of the indictment

shows that any prosecution is barred by the statute of limitations. This is because the

defect is incurable and irreparable. Limitations is an absolute bar to prosecution. There

is no point in wasting scarce judicial and societal resources or putting the defendant to

great expense, inconvenience, and anxiety if the ultimate result is never in question.”

Phillips v. State, 362 S.W.3d 606, 617 n.64 (Tex.Crim.App. 2011) (quoting Ex parte

Smith, 178 S.W.3d 797, 801-02 (Tex.Crim.App. 2005)).


       However, “a prior indictment tolls the statute of limitations under Article 12.05(b)

for a subsequent indictment when both indictments allege the same conduct, same act,

or same transaction.” Hernandez, 127 S.W.3d at 774; Tex. Code Crim. Proc. Ann art.

12.05(b) (West 2005).      Thus “if the State’s pleading includes a tolling paragraph,

                                             3
explanatory averments, or even innuendo allegations, this suffices to show that [a

prosecution for] the charged offense is not, at least on the face of the indictment, barred

by limitations.” Tita, 267 S.W.3d at 38 (internal quotation marks omitted). Pleading

tolling facts in the charging instrument “avoids a defect in the charging instrument.”

Tita, 267 S.W.3d at 38 (quoting G. Dix & R. Dawson, Texas Practice: Criminal Practice

and Procedure § 20.349 at 740 (2nd ed. 2001)).          Even when a tolling paragraph

contains a reparable defect, the trial court is not deprived of jurisdiction as long as the

charging instrument meets the constitutional and statutory definitions of a charging

instrument. Studer v. State, 799 S.W.2d 263, 268-69 (Tex.Crim.App. 1990); Burton v.

State, 805 S.W.2d 564, 571 (Tex.App.--Dallas 1991, pet. refused).


      Here, appellant was indicted within the limitations period for aggravated assault

with a deadly weapon in a court possessing subject matter jurisdiction. Outside the two-

year limitations period, appellant was charged by information in county court at law with

misdemeanor assault. The offense charged in district court and that in county court at

law arose from the same conduct. Hernandez, 127 S.W.3d at 774; see Irving v. State,

176 S.W.3d 842, 845-46 (Tex.Crim.App. 2005) (assault is lesser-included offense of

aggravated assault when conduct constituting assault is same conduct alleged in

aggravated assault charge).     The information invested the county court at law with

jurisdiction. Hernandez, 127 S.W.3d at 774.


      Appellant further contends, however, the 2006 indictment did not toll limitations

for misdemeanor offenses arising from the same conduct and chargeable in the county

court at law. We reject this contention, for two reasons.

                                            4
       First, the contention is based on a misreading of the record. Appellant asserts

that the county court at law authorized an amendment to the indictment pending in the

140th District Court. Not so. As mentioned, the complaint and information were filed in

the county court at law in May 2010. In August 2010, the State filed, in the county court

at law, a motion seeking approval for an amendment to the information, to add the

tolling paragraph. The county court at law granted the State’s motion, but never

authorized amendment of the indictment pending in the district court.


       Second, appellant’s contention finds no support in statute or case law. The Court

of Criminal Appeals held in Hernandez, “a prior indictment tolls the statute of limitations

under Article 12.05(b) for a subsequent indictment when both indictments allege the

same conduct, same act, or same transaction.” 127 S.W.3d at 774. Appellant would

limit the holding to instances in which the subsequent indictment occurs in a court of the

same jurisdictional level, and would exclude instances, like that before us, in which the

prior indictment was pending in district court but the subsequent charge is by

information in county court at law, even if the subsequent charge alleges the same

conduct. We see nothing in the Hernandez opinion to suggest the court intended such

a limitation on its holding.   Nor is the limitation appellant posits supported by the

language of article 12.05. Subsection 12.05(b) speaks of an “indictment, information, or

complaint,” drawing no distinction among the three. Appellant points to the phrases in

subsection 12.05(c) referring to trial courts’ jurisdiction, but nothing in that subsection

suggests the tolling effect of a pending prior indictment, information or complaint is

limited to subsequent charges filed in courts of the same jurisdictional level.       See

Mahaffey v. State, 364 S.W.3d 908, 913 (Tex.Crim.App. 2012) (describing means of
                                            5
statutory interpretation) We find no merit in appellant’s contention denying the tolling

effect of the November 2006 indictment on the subsequent misdemeanor charge in

county court at law.


       For these reasons, we overrule appellant’s sole issue on appeal, and affirm the

judgment of the trial court.




                                                      James T. Campbell
                                                           Justice




Do not publish.




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