           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1046-07



                      EX PARTE TENIKA BROOKS, Appellant



        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE TWELFTH COURT OF APPEALS
                      NACOGDOCHES COUNTY

              M EYERS, J., filed a concurring opinion.

                               CONCURRING OPINION

       The ground for review granted by this Court asked whether the court of appeals

mischaracterized Appellant’s issue as a challenge to an un-pled tolling provision rather

than as a thorough challenge to the timeliness of the instant indictment. I agree with the

majority that the court of appeals misconstrued Appellant’s argument. The issue is

complex, and controlling case law has recently evolved on this subject. I hope that this

concurrence is instructive to the court of appeals upon remand.

       A prosecution for theft or aggregate theft must be brought within five years from

the date of the commission. C ODE C RIM. P ROC. A NN. art. 12.01(4)(A). In Appellant’s
                                                            Ex Parte Brooks concurrence - Page 2

case, the statute of limitations ran from April 1, 2000, to April 1, 2005. A period of

limitations may be tolled for two reasons; the limitation period will not include 1) the

time that a defendant is absent from the state, or 2) the time that another indictment is

pending. C ODE C RIM. P ROC. A NN. art. 12.05. The second tolling circumstance–a pending

indictment–will toll the statute of limitations only if the subsequent indictment alleges the

same conduct, same act, or same transaction.1 Hernandez v. State, 127 S.W.3d 768 (Tex.

Crim. App. 2004).

       Using our opinion in Ex parte Smith, 178 S.W.3d 797 (Tex. Crim. App. 2005), the

court of appeals concluded that “Appellant’s complaint about the sufficiency of the

anticipated tolling provision [was] not the proper subject of a pretrial application for

habeas corpus.” Ex parte Brooks, No. 12-06-00378-CR, 2007 Tex. App. LEXIS 4770, at

*5 (Tex. App.–Tyler June 20, 2007, pet. granted). The court of appeals explained that

while facially barred indictments are a “proper subject of a pretrial application for habeas

corpus,” reparable indictments (such as Appellant’s) are not. Id.

       The problem with this reasoning is that it places Appellant’s indictment in the

wrong category; Appellant’s indictment is facially barred, and is therefore a proper



       1
         Appellant raised this as an issue to the court of appeals, arguing that because the
indictments charged different offenses, “[t]he preceding indictment did not toll the limitations
period for the separate offense and different conduct alleged in the instant indictment.” This
Court’s opinion in Tita v. State, 267 S.W.3d 33, 37-38 (Tex. Crim. App. 2008), offers another
argument in Appellant’s favor. Under Tita, Appellant could argue that the indictment violated
Article 21.02(6) by not indicating on its face that the prosecution was not barred by the
applicable statute of limitations. Id.
                                                          Ex Parte Brooks concurrence - Page 3

subject for a writ of habeas corpus. In a case recently decided by this Court, we stated

that if the State relies upon the pendency of an indictment to toll the statute of limitations,

it must so plead. Tita, 267 S.W.3d at 37-38. We derived this requirement from Article

21.02(6) of the Code of Criminal Procedure, which states, “The time mentioned must be

some date anterior to the presentment of the indictment, and not so remote that the

prosecution of the offense is barred by limitation.” C ODE C RIM. P ROC. A NN. art. 21.02(6).

       Here, the absence of a tolling paragraph makes the indictment facially invalid. A

claim that the indictment is facially invalid raises an issue that, if meritorious, would bar

prosecution or conviction, and therefore a pretrial writ is proper in this situation. Based

on Appellant’s indictment, it is clear that she was charged with an offense for which the

statute of limitations had run. Therefore, I would conclude that Appellant is entitled to

habeas corpus relief.

                                                                  Meyers, J.

Filed: June 9, 2010

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