                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo

                                            No. 07-12-00398-CR


                                 RICHARD KLEMISCH, APPELLANT

                                                      V.

                                 THE STATE OF TEXAS, APPELLEE

                           On Appeal from the County Court at Law No. 2
                                       Lubbock County, Texas
                   Trial Court No. 2012-469,919, Honorable Drue Farmer, Presiding

                                               July 11, 2014

                                                OPINION
                       Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.1


         Appellant Richard Klemisch appeals his conviction for possession of between

two and four ounces of marijuana and the resulting sentence of 365 days in jail,

probated for 24 months, and a $500 fine. Through one issue, appellant contends the

trial court erred in denying his motion to dismiss. We will affirm the judgment of the trial

court.



         1
             John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
                                            Background


       Appellant was indicted in Cause No. 2009-423,386 in May 2009 in district court

for possession of marijuana on or about April 13, 2009.2 The indictment alleged the

offense was enhanced to a state jail felony because the offense was committed "within

1,000 feet of real property owned by a school, namely, Debra Bozeman Daycare[.]" 3 In

June 2011, appellant filed a motion to quash the indictment and dismiss the prosecution

for lack of jurisdiction in the district court, alleging the drug-free zone enhancement was

meritless. The State filed a motion to dismiss the prosecution, and the case was

dismissed on June 9, 2011.


       Two days before the dismissal of the felony indictment, on June 7, 2011, the

State filed a complaint and information alleging appellant committed a Class A

misdemeanor offense by possessing the marijuana in April 2009.4 Appellant moved to

quash the complaint and information, and to dismiss the prosecution, alleging the State

was barred from prosecuting the case because: (1) the information was filed after the

expiration of the two-year statute of limitations for the offense; and (2) the felony

indictment in Cause No. 2009-423,386 did not toll the running of the limitations because

it was filed in a court that lacked subject matter jurisdiction over the offense. The June

2011 information was later dismissed on the State’s motion.


       2
           See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a) (West 2012).
       3
         See TEX. HEALTH & SAFETY CODE ANN. § 481.134(a)(5) (West 2011) (defining “school” for this
purpose to include a “day-care center”).
       4
           See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(2) (West 2012).


                                                  2
       In May 2012, appellant was again charged by information with the April 2009

possession of the marijuana. The 2012 information alleged:


       Comes now the undersigned Assistant Criminal District Attorney of Lubbock
       County, Texas, in behalf of the State of Texas, and presents in and to the County
       Court at Law No. [2] of Lubbock County, Texas, that in Lubbock County, Texas,
       RICHARD KLEMISCH, hereafter styled the Defendant, heretofore on or about
       13th day of April, A.D. 2009, did then and there intentionally or knowingly
       possess a usable quantity of marihuana in an amount of four ounces or less but
       more than two ounces;

       And it is further presented in and to said Court that during a period from May 13,
       2009 until June 9, 2011, an indictment charging the above offense was pending
       in a court of competent jurisdiction, to wit: cause number 2009-423,386 in the
       137th District Court of Lubbock County, Texas, styled the State of Texas vs.
       Richard Klemisch.


       During pretrial proceedings appellant reiterated his position that the county court

at law did not have jurisdiction to act because of the running of limitations. He argued

the May 2009 indictment did not toll limitations because the district court was not a court

of competent jurisdiction for the case.


       Appellant entered an open plea of guilty to the court in August 2012. Before

doing so, he again reiterated his motion to quash the complaint and information on his

limitations theory. The court denied the motion, and this appeal follows.


                                          Analysis


       On appeal, appellant raises one issue, comprised of several arguments. All of

appellant’s arguments turn on the validity of the tolling paragraph in the May 2012

information.




                                             3
      The sufficiency of a charging instrument presents a question of law. Smith v.

State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). An appellate court reviews a trial

judge's ruling on a motion to quash a charging instrument de novo. Id. at 14.


      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)).


      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.” 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)); Tita v. State,

267 S.W.3d 33, 38 (Tex. Crim. App. 2008) (citing TEX. CODE CRIM. PROC. ANN. art.

21.02(6)). The presentment of an indictment or information to a court charging a person

with commission of an offense invests a court with jurisdiction over the cause. TEX.

CONST. art. 5, § 12(b); Aguilar v. State, 846 S.W.2d 318, 320 (Tex. Crim. App. 1993);

Studer v. State, 799 S.W.2d 263, 268-69 (Tex. Crim. App. 1990). A district court has

original jurisdiction in criminal cases “of the grade of felony, of all misdemeanors

involving official misconduct, and of misdemeanor cases transferred to the district court

under Article 4.17 of [the Code of Criminal Procedure].” TEX. CODE CRIM. PROC. ANN.

art. 4.05 (West 2012).

                                            4
       Article 12.05 of the Code of Criminal Procedure, the tolling statute, provides, in

relevant part:


       (b) The time during the pendency of an indictment, information, or complaint shall
       not be computed in the period of limitation.

       (c) The term "during the pendency," as used herein, means 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.


       “[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,

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. Pleading tolling facts in the charging instrument

"avoids a defect in the charging instrument." Id. (quoting G. Dix & R. Dawson, Texas

Practice: Criminal Practice and Procedure § 20.349 at 740 (2nd ed. 2001)).


       It is undisputed that the May 2009 indictment and the 2012 information alleged

the same act of possession of the marijuana. The parties also agree that the indictment

was pending from May 13, 2009 until June 9, 2011. Appellant asserts the May 2009

indictment was not effective to toll limitations because the district court was not a “court

of competent jurisdiction” for the possession offense. Appellant argues the district court

never acquired jurisdiction over the initial case filed in 2009 because the State would

not have been able to prove the drug-free zone allegation.


                                             5
       We disagree. It is the presentment of an indictment or information to a court

charging a person with commission of an offense that gives the court jurisdiction over

the cause. Aguilar, 846 S.W.2d at 320. Whether the State could prove the drug-free

zone allegation is irrelevant to the court’s jurisdiction. The May 2009 indictment alleged

the offense of possession of marijuana in the amount of more than two but less than

four ounces, TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(2) (West 2012), in a drug-

free zone, a state-jail felony offense. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.134(e)(1) (West 2012) (addressing drug-free zones).           The indictment was

returned within the applicable two-year limitations period. See TEX. CODE CRIM. PROC.

ANN. art. 12.02(a) (West 2012) (limitations for misdemeanor offenses). The 2009

indictment thus alleged a felony offense, vesting the district court with jurisdiction to

hear the case. TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2012).


       Under the tolling statute, the time during the pendency of the May 2009

indictment is not included when computing the application of the two-year limitations

period. TEX. CODE CRIM. PROC. ANN. art. 12.05(b) (West 2005).


       Having concluded the information included a valid tolling paragraph, appellant’s

prosecution for the misdemeanor offense was not, on the face of the charging

instrument, barred by limitations. Tita, 267 S.W.3d at 38. The county court at law had

jurisdiction over the offense.




                                            6
                                       Conclusion


         We resolve appellant’s issue against him and affirm the judgment of the trial

court.


                                                     James T. Campbell
                                                         Justice


Publish.




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