               PD-1238-15                                                         PD-1238-15
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                             No.                                Transmitted 9/21/2015 4:18:01 PM
                                                                  Accepted 9/22/2015 2:16:41 PM
                             In the                                               ABEL ACOSTA
                                                                                          CLERK
          Court of Criminal Appeals of Texas
                           At Austin

                  

                    No. 01-14-00962-CR
                 In the Court of Appeals for the
                      First District of Texas
                            At Houston

                  

              THE STATE OF TEXAS
                            Appellant
                              V.
           JIMMY EARL DRUMMOND
                            Appellee

                  

STATE’S PETITION FOR DISCRETIONARY REVIEW

                  

                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas

                                                   ALAN CURRY
                                                   State Bar Number 05263700
                                                   Assistant District Attorney
                                                   Harris County, Texas

                                                   JULIAN RAMIREZ
                                                   Assistant District Attorney
                                                   Harris County, Texas
   September 22, 2015
                                                   LISA MCMINN
                                                   State Prosecuting Attorney

                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   Tel.: 713/755-5826
                                                   FAX No.: 713/755-5809
                                                   curry_alan@dao.hctx.net

                                                   Counsel for Appellant
                     IDENTIFICATION OF THE PARTIES

       A complete list of the names of all interested parties is provided below so that

the members of this Honorable Court may at once determine whether they are

disqualified to serve or should recuse themselves from participating in the decision of

the case.

       Complainant, victim, or aggrieved party:

             David Scherz, Jr.

       Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Lisa McMinn  State Prosecuting Attorney on appeal

             Alan Curry  Assistant District Attorney on appeal

             Julian Ramirez  Assistant District Attorney at trial

                    1201 Franklin, Suite 600
                    Houston, Texas 77002

       Appellee or criminal defendant:

             Jimmy Earl Drummond

       Counsel for Appellee:

             Samuel Cammack  Counsel at trial and on appeal

                    1001 West Loop South, Suite 700
                    Houston, Texas 77027-9033



                                           i
Trial Judge:

               Hon. Denise Collins  Presiding Judge




                                        ii
                                        TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES ...........................................................................i

INDEX OF AUTHORITIES ............................................................................................. iv

STATEMENT OF THE CASE .......................................................................................... 2

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ...................... 2

STATE’S GROUND FOR REVIEW ................................................................................ 3

         The court of appeals erred in holding that the running of the statute of
         limitations was not tolled by the filing of the initial complaint against the
         appellee when the clear language of the controlling statute states that the
         filing of a complaint tolls the running of the statute of limitations (C.R.
         73; R.R. II-49).

PRAYER FOR RELIEF ..................................................................................................... 14

CERTIFICATE OF COMPLIANCE .............................................................................. 15

CERTIFICATE OF SERVICE ......................................................................................... 16




                                                           iii
                                         INDEX OF AUTHORITIES
CASES

Arabzadegan v. State,
  240 S.W.3d 44 (Tex. App.—
  Austin 2007, pet. ref’d) ...................................................................................................... 9

Barnhill v. State,
  657 S.W.2d 131 (Tex. Crim. App. 1983) ......................................................................... 9

Dickerson v. State,
  571 S.W.2d 942 (Tex. Crim. App. 1978) ......................................................................... 7

Emerson v. State,
 727 S.W.2d 267 (Tex. Crim. App. 1987) ......................................................................... 3

Ex parte Clear,
 573 S.W.2d 224 (Tex. Crim. App. 1978) ......................................................................... 7

Ex parte Dobbs,
 978 S.W.2d 959 (Tex. Crim. App. 1998) ......................................................................... 7

Ex parte Ward,
 560 S.W.2d 660 (Tex. Crim. App. 1978) ..................................................................... 7, 8

Forte v. State,
  707 S.W.2d 89 (Tex. Crim. App. 1986) ........................................................................... 9

Gallagher v. State,
  690 S.W.2d 587 (Tex. Crim. App. 1985) ......................................................................... 3

Gentry v. State,
  259 S.W.3d 272 (Tex. App.—
  Waco 2008, pet. ref’d) ........................................................................................................ 9

Green v. State,
  872 S.W.2d 717 (Tex. Crim. App. 1994) ......................................................................... 9




                                                                iv
Marbach v. State,
 773 S.W.2d 411 (Tex. App.—
 San Antonio 1989, no pet.) ............................................................................................... 7

Miffleton v. State,
 777 S.W.2d 76 (Tex. Crim. App. 1989) ........................................................................... 9

Skero v. State,
  866 S.W.2d 336 (Tex. App.—
  Houston [14th Dist.] 1993, pet. ref’d) ............................................................................. 4

State v. Edwards,
  808 S.W.2d 662 (Tex. App.—
  Tyler 1991, no pet.) ............................................................................................................ 6

State v. Hall,
  794 S.W.2d 916 (Tex. App.—
  Houston [1st Dist.] 1990), aff’d,
  829 S.W.2d 184 (Tex. Crim. App. 1992) ......................................................................... 3

State v. Morris,
  228 S.W.3d 246 (Tex. App.—
  Austin 2007, no pet.) .......................................................................................................... 9


STATUTES

TEX. CODE CRIM. PROC. ANN. art. 12.05 (West 2015) .............................................passim

TEX. CODE CRIM. PROC. ANN. art. 15.05 (West 2015) ...................................................... 6

TEX. CODE CRIM. PROC. ANN. art. 21.22 (West 2015) ...................................................... 6

TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2015) .................................................. 3, 10

TEX. CODE CRIM. PROC. ANN. arts. 12.02, 12.04 (West 2015) ......................................... 4

TEX. GOV’T CODE ANN. § 24.007 (West 2015) ................................................................ 10

TEX. GOV’T CODE ANN. § 24.387 (West 2015) ................................................................ 10


                                                                 v
TEX. GOV’T CODE ANN. § 54.856 (West 2015) ................................................................ 11


RULES

TEX. R. APP. P. 66.3(a) ........................................................................................................... 3

TEX. R. APP. P. 66.3(d) ........................................................................................................... 3


CONSTITUTIONAL PROVISIONS

TEX. CONST. art. V, § 12(b) ................................................................................................... 9

TEX. CONST. art. V, § 8 .................................................................................................... 3, 10




                                                                 vi
               STATEMENT REGARDING ORAL ARGUMENT

       In the event the State’s petition for discretionary review is granted by this

Honorable Court, the State requests oral argument herein for the following reason:

       The decision by the court of appeals reduces the significance of the filing of a

complaint in Texas criminal law as one of the charging instruments that begins the

initiation of adversarial judicial proceedings. This Court should resolve the conflict in

Texas law that this decision has created. Oral argument will assist in identifying the

ramifications of this conflict.
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                          STATEMENT OF THE CASE

      In cause number 1446229, the appellee was charged with the misdemeanor

offense of official oppression (C.R. 5). The appellee filed a motion to quash the

indictment and dismiss the prosecution, claiming that the offense was barred by

limitations (C.R. 70-71). On November 10, 2014, the trial court granted the appellee’s

motion to quash the indictment and dismiss the prosecution (C.R. 73; R.R. II-49). On

November 18, 2014, the State timely filed a written notice of appeal (C.R. 83).

                        




     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      In a published opinion, delivered August 20, 2015, the First Court of Appeals

affirmed the judgment of the trial court. The State now timely files its petition for

discretionary review in accordance with TEX. R. APP. P. 68.2(a).

                        




                                           2
                        STATE’S GROUND FOR REVIEW

The court of appeals erred in holding that the running of the statute of
limitations was not tolled by the filing of the initial complaint against the
appellee when the clear language of the controlling statute states that the filing
of a complaint tolls the running of the statute of limitations (C.R. 73; R.R. II-
49).

                             REASONS FOR REVIEW

      This holding by the court of appeals should be reviewed pursuant to TEX. R.

APP. P. 66.3(a) because the decision of the court of appeals conflicts with the decision

of the Bonner v. State, 832 S.W.2d 134 (Tex. App.—Amarillo 1992, pet. ref’d). This

holding should also be reviewed pursuant to TEX. R. APP. P. 66.3(d) because court of

appeals has misconstrued TEX. CODE CRIM. PROC. ANN. art. 12.05 (West 2015).

      On September 9, 2013, the appellee, then a Sergeant with the Harris County

Constable’s Office, was charged by complaint with the offense of official oppression

based upon events that occurred on September 10, 2011 (C.R. 6-7; R.R. III-State’s

Exhibit # 1). This complaint was presented to a magistrate, who found probable

cause for the criminal charge and for the appellee’s arrest, and the case was filed in the

208th District Court (C.R. 6-7; R.R. III-State’s Exhibit # 1).1          The statute of



1
  The offense of official oppression is a misdemeanor involving official misconduct,
over which a district court has exclusive jurisdiction. Emerson v. State, 727 S.W.2d 267,
268-69 (Tex. Crim. App. 1987) (citing Gallagher v. State, 690 S.W.2d 587 (Tex. Crim.
App. 1985); TEX. CONST. art. V, § 8; TEX. CODE CRIM. PROC. ANN. art. 4.05 (West
2015). Cf. State v. Hall, 794 S.W.2d 916 (Tex. App.—Houston [1st Dist.] 1990), aff’d,
829 S.W.2d 184 (Tex. Crim. App. 1992) (holding that statute of limitations was not
tolled because charge filed in district court was not misdemeanor involving official

                                            3
limitations for the offense of official oppression occurring on September 10, 2011

expired on September 12, 2013. See TEX. CODE CRIM. PROC. ANN. arts. 12.02, 12.04

(West 2015).

       On October 24, 2014, a grand jury returned an indictment against the appellee

for the offense of official oppression based upon events that occurred on September

10, 2011, and the indictment included the following tolling language, “It is further

alleged that the Defendant was previously charged by a complaint and information

and indictment with this offense from September 9, 2013 through October 24, 2014,

during which period the statute of limitations for this offense was tolled” (C.R. 5; R.R.

III-State’s Exhibit # 3).2 This indictment was filed in the 208th District Court (C.R.

5; R.R. III-State’s Exhibit # 3).

       The State contends that the complaint filed on September 9, 2013 was

sufficient to toll the statute of limitations, and that the trial court erred in granting the

appellee’s motion to quash, in which he claimed that the statute of limitations had

expired, and that the court of appeals erred in upholding the trial court’s ruling in that

regard. The decision of the court of appeals was contrary to the controlling statute,

which provides:


misconduct and that, therefore, charge had not been filed in court of competent
jurisdiction).
2
   If a charging instrument does not contain tolling language, as was the case with the
first indictment filed in this case, the indictment can be amended or re-filed to include
the appropriate tolling language. See Skero v. State, 866 S.W.2d 336, 338 (Tex. App.—
Houston [14th Dist.] 1993, pet. ref’d).

                                             4
             (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.

TEX. CODE CRIM. PROC. ANN. art. 12.05 (West 2015) (emphasis added). The State

contends that the filing of the complaint in this case was sufficient to toll the statute

of limitations for the misdemeanor involving official misconduct.

      In Bonner v. State, the Amarillo Court of Appeals was confronted with essentially

the same question that confronts this Court in this case. In Bonner, on September 17,

1986, a complaint was filed in the trial court charging the defendant with felony

delivery of a controlled substance.      The complaint alleged that the offense was

committed on or about August 3, 1986. On August 1, 1991, well after the statute of

limitations for the felony offense had run, a grand jury returned an indictment

charging the defendant with the offense. As in this case, the indictment filed in Bonner

contained a tolling paragraph, alleging that the felony complaint had been filed against

the defendant charging him with the offense. Bonner v. State, 832 S.W.2d 134, 135

(Tex. App.—Amarillo 1992, pet. ref’d).

      In Bonner, as in this case, while the defendant acknowledged that the filing of an

indictment or information was a sufficient commencement of a prosecution to

prevent the running of a statute of limitations, he contended that the mere filing of a


                                           5
complaint was not sufficient to accomplish that result. In making that contention, as

in this case, the defendant in Bonner relied upon the decision in State v. Edwards, 808

S.W.2d 662 (Tex. App.—Tyler 1991, no pet.). See Bonner, 832 S.W.2d at 135.

      In Edwards, the State had filed a complaint and information on December 14,

1989, charging the defendant with the misdemeanor offense of theft by check alleged

to have occurred on September 4, 1985. But the State claimed that the two-year

limitation period had been tolled under Article 12.05 because a complaint meeting the

requirements of TEX. CODE CRIM. PROC. ANN. art. 15.05 (West 2015) had been filed

within nine months of the commission of the offense and an arrest warrant had

issued. In holding that the statute had not been tolled, the Edwards court noted that

the requirements of Article 15.05 were different from those required under TEX.

CODE CRIM. PROC. ANN. art. 21.22 (West 2015) to support a misdemeanor

information. Bonner, 832 S.W.2d at 135-36 (citing State v. Edwards, 808 S.W.2d 662

(Tex. App.—Tyler 1991, no pet.)).

      The Edwards court held that, under Article 21.22, both a complaint and

information were required to confer jurisdiction upon the county court to try a

misdemeanor case. En route to its holding, the court noted that Article 12.05 “serves

only to stay the running of the limitation period during the pendency of the type of

accusatory pleading appropriate to invoke the jurisdiction of a court of competent

jurisdiction. A court of competent jurisdiction is one that has jurisdiction of the

offense.” Bonner, 832 S.W.2d at 136 (citing State v. Edwards, 808 S.W.2d 662, 663 (Tex.

                                          6
App.—Tyler 1991, no pet.); Marbach v. State, 773 S.W.2d 411 (Tex. App.—San

Antonio 1989, no pet.)). In Bonner, as in this case, the defendant claimed that an

indictment was the only accusatory pleading appropriate to invoke the jurisdiction of

a district court, and, applying the logic of the Edwards case, concluded that the mere

filing of a complaint in the absence of the presentment of an indictment was not

sufficient to toll the applicable statute of limitations. The court of appeals disagreed.

Bonner, 832 S.W.2d at 136.

         In Bonner, the court of appeals noted that, in Ex parte Ward, 560 S.W.2d 660

(Tex. Crim. App. 1978), this Court had been confronted with the question of whether

a complaint filed in a justice court would toll the running of the statute of limitations

in a felony case. In Ex parte Ward, this Court had held that, while a justice court had

authority to take a complaint and issue a warrant of arrest, a justice court did not have

jurisdiction of the felony offense charged so as to come within the ambit of Article

12.05.     The court held that the statute of limitations was not tolled and that

prosecution in the case was barred. Bonner, 832 S.W.2d at 136 (citing Ex parte Ward,

560 S.W.2d 660, 662 (Tex. Crim. App. 1978)). See also Dickerson v. State, 571 S.W.2d

942, 943 (Tex. Crim. App. 1978) (filing of complaint in justice court does not toll

running of the period of limitations in felony case).3


3
  Cf. Ex parte Dobbs, 978 S.W.2d 959 (Tex. Crim. App. 1998) (municipal court, sitting
as a magistrate, had sole jurisdiction over complaints charging defendant with
offenses of aggravated sexual assault of a child and indecency with a child); Ex parte
Clear, 573 S.W.2d 224, 225-26 (Tex. Crim. App. 1978) (justice court had sole

                                            7
       However, this Court’s holding in Ex parte Ward did not control the holding of

the court of appeals in Bonner v. State:

       A careful reading of the Ward case demonstrates the emphasis placed by
       the Court upon the salient fact that the complaint was filed in the justice
       court which, of course, does not have jurisdiction of felony cases in this
       state. Implicit in that emphasis, and rather lengthy discussion of
       jurisdiction, is the conclusion if the complaint had been filed in a court
       of competent jurisdiction, i.e., the district court, the holding would have
       been different.

Bonner, 832 S.W.2d at 136 (citing Ex parte Ward, 560 S.W.2d 660, 662 (Tex. Crim. App.

1978)). The State agrees and contends that the filing of a complaint, charging a

defendant with a felony or with a misdemeanor involving official misconduct, would

be sufficient to toll the statute of limitations if the complaint had been filed in a

“court of competent jurisdiction.” The holding in Ex parte Ward clearly turned upon

the fact that the charging instrument had been filed in a justice court, and not upon

the fact that the charging instrument was a complaint.

       The conclusion by the court in Bonner was reinforced by the language of Article

12.05(b), in particular, that portion which reads that “the time during the pendency of

an indictment, information, or complaint” (emphasis added), shall not be computed in

the period of limitation.” The use of the disjunctive “or” preceding the reference to a

complaint is indicative of the legislative instruction that the filing of such an

instrument in a proper court would toll the statute. Bonner, 832 S.W.2d at 136-37.


jurisdiction over complaint, charging defendant with felony offense of assault of a
public servant).

                                           8
The filing of a complaint in district court was sufficient to toll the statute of

limitations for the felony offense in Bonner, and the filing of the complaint in this case

was sufficient to toll the statute of limitations for the misdemeanor involving official

misconduct alleged to have been committed by the appellee. In this case, the court of

appeals disagreed with the holding and the reasoning of the court of appeals in Bonner,

which had been previously reviewed by this Court. The holdings in the two published

decisions now stand in direct contradiction with one another, and this Court should

resolve that conflict.

       In Texas, the filing of a complaint often initiates a prosecution in felony cases

and in misdemeanor cases involving official misconduct. This Court has repeatedly

held that, as is the case with the filing of an indictment or information, the filing of a

felony complaint triggers the commencement of adversary judicial proceedings against

a defendant. Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994) (citing Barnhill

v. State, 657 S.W.2d 131, 132 (Tex. Crim. App. 1983); Miffleton v. State, 777 S.W.2d 76,

78 (Tex. Crim. App. 1989); Forte v. State, 707 S.W.2d 89, 92 (Tex. Crim. App. 1986)).

See also Gentry v. State, 259 S.W.3d 272, 277 (Tex. App.—Waco 2008, pet. ref’d);

Arabzadegan v. State, 240 S.W.3d 44, 48 (Tex. App.—Austin 2007, pet. ref’d); State v.

Morris, 228 S.W.3d 246, 249 (Tex. App.—Austin 2007, no pet.).

       The jurisdiction of district courts includes the filing of felony complainants and

complaints charging misdemeanors involving official misconduct. It is true that TEX.

CONST. art. V, § 12(b) provides, in part, “The presentment of an indictment or

                                            9
information to a court invests the court with jurisdiction of the cause.” But that

provision is not the primary provision that gives jurisdiction to a district court, and

that provision does not state that a district court should thereby ignore a felony

complaint or a complaint charging a defendant with a misdemeanor involving official

misconduct. District courts in fact gain their jurisdiction from TEX. CONST. art. V, §

8, which provides,

      District Court jurisdiction consists of exclusive, appellate, and original
      jurisdiction of all actions, proceedings, and remedies, except in cases
      where exclusive, appellate, or original jurisdiction may be conferred by
      this Constitution or other law on some other court, tribunal, or
      administrative body. District Court judges shall have the power to issue
      writs necessary to enforce their jurisdiction.

(emphasis added). See also TEX. GOV’T CODE ANN. § 24.007 (West 2015); TEX.

GOV’T CODE ANN. § 24.387 (West 2015) (specifically referencing 208th District

Court). Furthermore, TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2015) provides,

“District courts and criminal district courts shall have 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 this

code.” (emphasis added). A district court, like the 208th District Court, certainly has

jurisdiction over felony complaints and complaints that charge a defendant with a

misdemeanor involving official misconduct. Such a district court would be a “court

of competent jurisdiction” for such a complaint. The decision of the court of appeals




                                           10
does not mention any of these statutes affording a district court in Texas with

jurisdiction over a case.

       The complaint in this case was clearly filed in the papers of the 208th District

Court (C.R. 6). It is true that the complaint was initially presented to a magistrate or

hearing officer, who found probable cause that an offense had been committed and

that the appellee was to be arrested based upon those charges. But the complaint was

clearly returnable to the 208th District Court, and it initiated the filing of several

documents in the 208th District Court before an indictment was ever filed.

       In Harris County criminal courts, magistrates or “criminal law hearing

officers,” work for the 22 judges of the district courts trying criminal cases and the 15

judges of the county criminal courts at law. Those magistrates or “criminal law

hearing officers” are provided for in Chapter 54, Subchapter L of the Texas

Government Code. TEX. GOV’T CODE ANN. § 54.856 (West 2015) provides:

              (a) A criminal law hearing officer appointed under this subchapter
       has limited concurrent jurisdiction over criminal cases filed in the district
       courts and county criminal courts at law of the county and concurrent
       jurisdiction over criminal cases filed in the justice courts of the county.
       In criminal cases filed in the district courts and county criminal courts at
       law, the jurisdiction of the criminal law hearing officer is limited to:

              (1) determining probable cause for further detention of any
              person detained on a criminal complaint, information, or
              indictment filed in the district courts or county criminal courts at
              law;

              (2) committing the defendant to jail, discharging the defendant
              from custody, or admitting the defendant to bail, as the law and
              facts of the case require;

                                            11
                (3) issuing search warrants and arrest warrants as provided by law
                for magistrates; and

                (4) enforcing judgments and orders of the county criminal courts
                at law in criminal cases.

              (b) This section does not limit or impair the jurisdiction of
       the court in which the complaint, information, or indictment is
       filed to review or alter the decision of the criminal law hearing
       officer.

              (c) In a felony or misdemeanor case punishable by incarceration in
       the county jail, a criminal law hearing officer may not dismiss the case,
       enter a judgment of acquittal or guilt, or pronounce sentence.

(emphasis added). This statute, as is the case with Article 12.05, clearly contemplates

that a complaint is filed with an actual court. And this statute does not impair the

jurisdiction of the court and did not impair the jurisdiction of the 208th District Court

in this case.

       Pursuant to Article 12.05(b), a complaint filed in a district court should toll the

statute of limitations if the complaint alleges a misdemeanor offense involving official

misconduct, an offense over which a district court has jurisdiction. The 208th District

Court was a court of competent jurisdiction for the complaint charging the appellee

with having committed the offense of official oppression—a misdemeanor involving

official misconduct. Consequently, the statute of limitations for the misdemeanor

offense was properly tolled, and the trial court erred in granting the appellee’s motion

to quash the indictment. The court of appeals then erred in holding that the running

of the statute of limitations was not tolled by the filing of the initial complaint against

                                            12
the appellee when the clear language of the controlling statute states that the filing of

a complaint tolls the running of the statute of limitations. The State’s ground for

review should be sustained.

                        




                                           13
                            PRAYER FOR RELIEF

      WHEREFORE, the State prays that this Court will grant this petition for

discretionary review, and that this Court will reverse the decision of the court of

appeals.

                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas

                                                   /s/ Alan Curry

                                                   ALAN CURRY
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   TBC No. 05263700
                                                   curry_alan@dao.hctx.net




                                        14
                     CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document has

a word count of 2,886 words, based upon the representation provided by the word

processing program that was used to create the document.



                                                   /s/ Alan Curry

                                                   ALAN CURRY
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   TBC No. 05263700
                                                   curry_alan@dao.hctx.net




                                        15
                         CERTIFICATE OF SERVICE


      This is to certify that a copy of the foregoing instrument has been mailed to the

following addresses:


      Mr. Samuel R. Cammack, III               Ms. Lisa McMinn
      Attorney at Law                          State’s Prosecuting Attorney
      1001 West Loop South, Suite 700          P.O. Box 12405
      Houston, Texas 77027-9033                Austin, Texas 78711


                                                     /s/ Alan Curry

                                                     ALAN CURRY
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 05263700
                                                     curry_alan@dao.hctx.net

Date: September 21, 2015




                                          16
APPENDIX




   17
Opinion issued August 20, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-14-00962-CR
                          ———————————
                    THE STATE OF TEXAS, Appellant

                                       V.
                  JIMMY EARL DRUMMOND, Appellee


                  On Appeal from the 208th District Court
                          Harris County, Texas
                      Trial Court Case No. 1446229


                                 OPINION

     Appellant, the State of Texas, challenges the criminal district court’s order

granting the motion of appellee, Jimmy Earl Drummond, to quash and dismiss an

indictment accusing him of the Class A misdemeanor offense of official
oppression.1 In three issues, the State contends that the criminal district court erred

in granting appellee’s motion, holding that the pertinent statute of limitations 2 “was

not tolled by the filing of [its] initial complaint” against appellee, and holding that

its initial complaint “was not filed in a court of competent jurisdiction.”

      We affirm.

                                    Background

      On September 9, 2013, the State presented to a Harris County magistrate a

“COMPLAINT,” accusing appellee, then a sergeant with the Harris County

Constable’s Office (“HCCO”), Precinct 4, of committing the Class A misdemeanor

offense of official oppression on or about September 10, 2011. The complaint

contains a probable cause affidavit, which was sworn to by a peace officer

employed by the Harris County District Attorney’s Office and subscribed before an

assistant district attorney. The magistrate found probable cause for the arrest of

appellee, and the State filed the complaint in cause number 1400758 in the

criminal district court on September 9, 2013.

      On December 18, 2013, a Harris County Grand Jury returned a true bill of

indictment, specifically alleging that appellee,

      on or about September 10, 2011, . . . while a public servant acting
      under color of his office and employment, namely a Sergeant with the
1
      See TEX. PENAL CODE ANN. § 39.03(a)(1) (Vernon Supp. 2014). With exceptions
      not applicable here, an offense is a Class A misdemeanor. Id. § 39.03(d).
2
      See TEX. CODE CRIM. PROC. ANN. art. 12.02 (Vernon 2015).

                                           2
      [HCCO], intentionally subject[ed] . . . the Complainant[] to
      mistreatment that [appellee] knew was unlawful, to wit: by kicking
      the Complainant [and] . . . by dropping his knee forcefully on the
      Complainant’s upper back and neck area while the Complainant was
      handcuffed and face-down on the ground [and] . . . by grabbing the
      Complainant’s head and pulling it back while the Complainant was
      handcuffed and face-down on the ground.

Appellee challenged this indictment in his “Motion to Quash Indictment and

Dismiss Prosecution,” asserting that the indictment was improperly returned after

the expiration of the two-year statute of limitations governing the offense. 3

      On October 24, 2014, before the criminal district court ruled on appellee’s

motion to quash and dismiss, another Harris County Grand Jury returned a second

true bill of indictment in trial court cause number 1446229, the instant cause. This

second indictment contains the above quoted language from the first indictment.

And it “further allege[s]” that appellee “was previously charged by a complaint

and information [sic] and indictment with this offense from September 9, 2013

through October 24, 2014, during which period the statute of limitations for this

offense was tolled.” Appellee challenged the October 24, 2014 indictment in a

subsequent “Motion to Quash Indictment and Dismiss Prosecution,” asserting that

it was returned after the expiration of the two-year statute of limitations governing

the offense.




3
      See id.


                                          3
      At a hearing on appellee’s motions to quash and dismiss the indictments, the

State conceded that appellee’s motion to quash and dismiss the December 18, 2013

indictment was “meritorious” because it was returned outside of the two-year

limitations period and “did not on its face contain [a] tolling paragraph.” The trial

court granted appellee’s first motion and dismissed the December 18, 2013

indictment, noting that the State had “[a]greed as to [the] tolling paragraph.”

      In regard to appellee’s motion to quash and dismiss the October 24, 2014

indictment in the instant cause, the State asserted that the complaint that it had

initially filed in the criminal district court on September 9, 2013 tolled the two-

year limitations period. Appellee, in contrast, asserted that in the prosecution of a

Class A misdemeanor offense, a complaint, standing alone without the timely

filing of an information or return of an indictment prior to the expiration of the

two-year limitations period, does not toll the limitations period. The trial court

granted appellee’s motion and dismissed the October 24, 2014 indictment.

                                Standard of Review

      We review a trial court’s ruling on a motion to quash de novo. Smith v.

State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010); Tata v. State, 446 S.W.3d

456, 462 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); see also State v. Moff,

154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (“When the resolution of a question

of law does not turn on an evaluation of the credibility and demeanor of a witness,



                                          4
then the trial court is not in a better position to make the determination, so

appellate courts should conduct a de novo review of the issue.”). We construe

limitations provisions “strictly against the State and liberally in favor of the

defendant.” Gallardo v. State, 768 S.W.2d 875, 880 (Tex. App.—San Antonio

1989, pet. ref’d).

                                     Limitations

      In its three issues, the State argues that the trial court erred in granting

appellee’s motion to quash and dismiss the October 24, 2014 indictment in the

instant cause because its “initial complaint,” filed in the criminal district court on

September 9, 2013, tolled the two-year limitations period. See TEX. CODE CRIM.

PROC. ANN. art. 12.05(b) (Vernon 2015).

      Appellee argues that the trial court properly granted his motion to quash and

dismiss the October 24, 2014 indictment “because both the original indictment and

subsequent indictment were presented to the [criminal district] court after the

limitations period had expired.” He specifically argues that the trial court properly

held that “the filing of the initial complaint did not toll the running of the statute of

limitations because the mere filing of the complaint without the proper accusatory

pleading, i.e., an information or indictment, does not toll the statute of

limitations . . . for a Class A misdemeanor.” See TEX. CODE CRIM. PROC. ANN. art.

12.02(a) (Vernon 2015).



                                           5
      A statute of limitations protects one accused of an offense “from having to

defend [himself] 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) (quoting Toussie v. United States, 397 U.S. 112, 114–15, 90 S.

Ct. 858, 860 (1970), superseded by statute on other grounds as recognized in

United States v. Tavarez-Levario, 788 F.3d 433, 437 (5th Cir. 2015)). A charging

instrument must reflect on its face that a prosecution thereunder is not barred by

the applicable statute of limitations. Tita v. State, 267 S.W.3d 33, 37 (Tex. Crim.

App. 2008); see also TEX. CODE CRIM. PROC. ANN. art. 21.02(6) (Vernon 2009). If

a comparison of the date on which a charging instrument is presented indicates that

it was not presented within the applicable period of limitation, then, on a

defendant’s motion, it “must be dismissed.” Tita, 267 S.W.3d at 37; see also TEX.

CODE CRIM. PROC. ANN. art. 27.08(2) (Vernon 2006).

      In 2009, the Texas Legislature amended article 12.02, which now, in regard

to limitations for misdemeanor offenses, expressly provides:

      (a)   An indictment or information for any Class A or Class B
            misdemeanor may be presented within two years from the date
            of the commission of the offense, and not afterward.

      (b)   A complaint or information for any Class C misdemeanor may
            be presented within two years from the date of the commission
            of the offense, and not afterward.



                                        6
TEX. CODE CRIM. PROC. ANN. art. 12.02 (emphasis added); see also Act of May 24,

1973, 63rd Leg., R.S., ch. 399, § 2(b), 1973 Tex. Gen. Laws 883, 975, amended by

Act of May 25, 2009, 81st Leg., R.S., ch. 472, § (1)–(3), 2009 Tex. Gen. Laws

1077, 1077. In amending article 12.02, the legislature rewrote the previous single

paragraphed article 4 and created two new subsections: (a), which concerns the

requirement of a timely presentation of either “an indictment or information” for

the prosecution of Class A and B misdemeanor offenses, and (b), which concerns

the requirement of a timely presentation of either a “complaint or information” for

the prosecution of a Class C misdemeanor offenses. See Act of May 24, 1973,

63rd Leg., R.S., ch. 399, § 2(b), 1973 Tex. Gen. Laws 883, 975 (amended 2009).

      Here, the State, based on events occurring on September 10, 2011, attempted

to accuse appellee of committing the offense of official oppression, a Class A

misdemeanor.    See TEX. PENAL CODE ANN. § 39.03(a)(1), (d) (Vernon Supp.

2014). Thus, pursuant to the express language of article 12.02(a), the State, to

prosecute appellee for the offense, was required to present “an indictment or

information” against him by September 10, 2013, “and not afterward.” TEX. CODE

CRIM. PROC. ANN. art. 12.02(a) (emphasis added).


4
      “An indictment or information for any misdemeanor may be presented within two
      years from the date of the commission of the offense, and not afterward.” Act of
      May 24, 1973, 63rd Leg., R.S., ch. 399, § 2(b), 1973 Tex. Gen. Laws 883, 975,
      amended by Act of May 25, 2009, 81st Leg., R.S., ch. 472, § (1)–(3), 2009 Tex.
      Gen. Laws 1077, 1077.

                                          7
       Although, for limitation purposes, a timely presented “complaint” will

suffice under article 12.02(b) for the prosecution of a Class C misdemeanor, only a

timely presented “indictment or information” will suffice for the prosecution of

Class A and B misdemeanors under article 12.02(a). It is undisputed that the State

did not, by September 10, 2013, present in the criminal district court below an

“indictment or information” against appellee for the Class A misdemeanor offense

of official oppression. Indeed, the State did not present the indictment at issue

until October 24, 2014.

       The code of criminal procedure does further provide that the time “during

the pendency of an indictment, information, or complaint shall not be computed in

the period of limitation.” TEX. CODE CRIM. PROC. ANN. art. 12.05(b). And it

specifically defines “during the pendency” as meaning

       Th[e] 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. art. 12.05(c).

       The State argues that its filing of its September 9, 2013 complaint “was

sufficient to toll the statute of limitations” until the presentment of the October 24,

2014 indictment because article 12.05 expressly includes the word “complaint” and

it employs the disjunctive, “or.” However, a plain reading of article 12.05 reveals

that nothing within it relieved the State of its obligation under article 12.02(a) to

                                          8
present by September 10, 2013 in the criminal district court the appropriate

charging instrument for the Class A misdemeanor offense of official oppression,

i.e., either “an indictment or information.”

      Indeed, the legislature enacted article 12.05 because it “sought to give the

State more freedom to prosecute defendants when the original [charging

instrument] contains a defect.”       Hernandez, 127 S.W.3d at 771.            “[M]any

indictments, informations, and complaints [were] being held invalid because of

procedural errors and defects in form that ha[d] nothing to do with the guilt or

innocence of the persons charged, and persons guilty of capital, as well as other

crimes, [we]re going unpunished. . . .” Id. (quoting Vasquez v. State, 557 S.W.2d

779, 784 n.7 (Tex. Crim. App. 1977), overruled on other grounds by Proctor v.

State, 967 S.W.2d 840 (Tex. Crim. App. 1998)). Simply put, “[t]he provisions

[a]rticle 12.05(b) and (c) . . . were designed to overcome the rule that invalid

indictments will not toll the running of the statutes of limitation in the absence of a

statute so providing.” Vasquez, 557 S.W.2d at 784. The court of criminal appeals

has held that to fulfill the legislature’s purpose in enacting article 12.05(b), “a prior

indictment tolls the statute of limitations . . . for a subsequent indictment when

both indictments allege the same conduct, same act, or same transaction.”

Hernandez, 127 S.W.3d at 774; see, e.g., Brice v. State, No. 14-13-00935-CR,

2015 WL 545557, at *2 (Tex. App.—Houston [14th Dist.] Feb. 10, 2015, no pet.)



                                           9
(mem. op., not designated for publication). Thus, article 12.05, presuming the

existence of an appropriate charging instrument filed within the limitations period,

merely grants the State time to address procedural errors and defects in the

instrument that might not be raised before limitations expires.

      Had the State timely presented a defective indictment or information against

appellee in the criminal district court for the prosecution of the Class A

misdemeanor offense of official oppression, the time “during the pendency” of the

defective indictment or information, i.e., the time from the date of its filing to the

date the defect was determined, would “not be computed in the period of

limitation.” See TEX. CODE CRIM. PROC. ANN. art. 12.05(b), (c). Likewise, had the

State timely presented in an appropriate court a defective complaint for the

prosecution of a Class C misdemeanor offense, the time “during the pendency” of

the defective complaint, i.e., the time from the date of its filing to the date the

defect is determined, would “not be computed in the period of limitation.” See id.

But, here, the State was attempting to charge appellee with a Class A misdemeanor

offense, not a Class C misdemeanor offense, and the State’s initial complaint filed

on September 9, 2013 was, by its own admission, not an indictment or information.

      A “complaint” serves as the charging instrument in a prosecution conducted

in a municipal or justice court. TEX. CODE CRIM. PROC. ANN. arts. 45.001, .018

(Vernon 2006); see also State v. Boseman, 830 S.W.2d 588, 590 n.3 (Tex. Crim.



                                         10
App. 1992) (“[M]unicipal courts are relatively unique, in that a prosecution in a

municipal court is sufficient to support a conviction, on a complaint alone, without

an information being filed.”). A “complaint” may also serve as a basis for a

probable cause finding for an arrest warrant or “serve as a basis for the issuance of

an information or commencement of the indictment process.”           Boseman, 830

S.W.2d at 590 n.3; Gordon v. State, 801 S.W.2d 899, 916 (Tex. Crim. App. 1990)

(noting distinction between complaint used to support warrant and complaint used

as charging instrument).

      Although an indictment or information charging a defendant with the

commission of a Class A or B misdemeanor must be supported by an underlying

complaint, it is the “presentment of an indictment or information to a court [that]

invests the court with jurisdiction of the cause.” TEX. CONST. art. V, § 12(b); see

TEX. CODE CRIM. PROC. ANN. art. 21.22 (Vernon 2009). A trial court that “finds

fault with an information or indictment does not ‘dismiss’ the complaint on which

the indictment or information was based, but sets aside the information or

indictment.” Boseman, 830 S.W.2d at 590 n.3. And, again, article 12.02(a), in

regard to Class A and B misdemeanor offenses, specifically requires that an

“indictment or information,” and not a complaint, be presented within two years

from the date of the commission of the offense.




                                         11
      The case law concerning article 12.05 predates the legislature’s 2009 rewrite

of article 12.02 and is limited. Nevertheless, courts have previously held that a

Class B misdemeanor complaint standing alone, without the timely presentation of

an indictment or information within the limitations period, “does not trigger article

12.05(b).” Marbach v. State, 773 S.W.2d 411, 412 (Tex. App.—San Antonio

1989, no pet.); see State v. Edwards, 808 S.W.2d 662, 663 (Tex. App.—Tyler

1991, no pet.).

      In Edwards, the State filed, within the limitations period, an affidavit in

which the affiant accused the defendant of the Class B misdemeanor offense of

theft. 808 S.W.2d at 663. After the limitations period had expired, the State filed a

complaint and an information, formally accusing the defendant of the offense. Id.

The State argued that the filing of its affidavit tolled the limitations period because

it met the requirements of a “complaint.” Id. (citing TEX. CODE CRIM. PROC. ANN.

arts. 12.05, 15.05). The court explained that an affidavit made in support of an

arrest warrant significantly differs from that required to support an information

because an arrest warrant “may be procurable upon evidence insufficient or

incompetent to support an information necessary to bring the accused to trial.” Id.

Thus, the court held that article 12.05 serves “only to stay the running of the

limitation period during the pendency of the type of accusatory pleading

appropriate to invoke the jurisdiction of a court of competent jurisdiction,” which



                                          12
is one that has jurisdiction of the offense. Id. It noted that because the State was

attempting to charge the defendant with a Class B misdemeanor in a county court,

“both a complaint and information [were] necessary to confer jurisdiction.” Id.

And a “filed misdemeanor complaint without a filed misdemeanor information

[did] not suffice to toll the running of limitations under article 12.05.” Id.

      Acknowledging Edwards, the State nevertheless argues that “the filing of a

complaint, charging a defendant with a felony or with a misdemeanor involving

official misconduct, would be sufficient to toll the statute of limitations if the

complaint had been filed in a ‘court of competent jurisdiction.’” In support of this

argument, the State relies on Bonner v. State, 832 S.W.2d 134 (Tex. App.—

Amarillo 1992, pet. ref’d). In Bonner, although the State filed, in the district court

and within the limitations period, a complaint charging the defendant with the

felony offense of delivery of a controlled substance, an indictment was not

returned until after the limitations period had expired. Id. at 135. The defendant

argued that the filing of the complaint, standing alone, was insufficient to toll the

running of the statute of limitations. Id.

      The Amarillo Court in Bonner noted that in Ex parte Ward, the Texas Court

of Criminal Appeals held that a complaint filed in a justice court did not toll the

statute of limitations for a felony offense because the justice court, although it had

authority to take a complaint and issue an arrest warrant, “did not have jurisdiction



                                             13
of the felony offense charged . . . so as to come within the ambit of article 12.05.”

Id. (quoting Ward, 560 S.W.2d 660, 662 (Tex. Crim. App. 1978)). The Amarillo

Court reasoned, without explanation, that “[i]mplicit in” the holding in Ward was a

“conclusion that if the complaint had been filed in a court of competent

jurisdiction, i.e., the district court, the holding would have been different.” Id.

And it held that the filing of the complaint in the district court, which was the

“court of competent jurisdiction” to try the felony offense at issue, “was sufficient

to invoke the jurisdiction of that court and to toll the limitation period.” Id. at 137.

It further concluded, again without explanation, that Edwards was distinguishable

in that it “dealt with the different requisites in a misdemeanor case,” which were

not applicable to the felony case before it. Id.

      As noted above, the time “during the pendency of an indictment,

information, or complaint shall not be computed in the period of limitation.” TEX.

CODE CRIM. PROC. ANN. art. 12.05(b). “[D]uring the pendency” means the “period

of time beginning with the day the indictment, information, or complaint is filed in

a court of competent jurisdiction . . . .” Id. art. 12.05(c). And the Texas Court of

Criminal Appeals has held that “for purposes of Article 12.05, a court of competent

jurisdiction is a court with jurisdiction to try the case.” State v. Hall, 829 S.W.2d

184, 187 (Tex. Crim. App. 1992).         Again, however, nothing in article 12.05

relieves the State of its obligation under article 12.02(a) to first timely present an



                                          14
appropriate charging instrument for Class A and B misdemeanor offenses, i.e.,

either “an indictment or information.”

      Moreover, the court of criminal appeals and this Court have further

explained that a “court of competent jurisdiction” means a “court that has

jurisdiction of the offense,” and the elements essential to that jurisdiction are: (1)

authority over the person, (2) authority over the subject matter, and (3) power to

enter a judgment. See Ward, 560 S.W.2d at 661–62; Hall, 794 S.W.2d at 919.

Courts may lack jurisdiction for different reasons. For instance, in Ward, the

justice court in which the complaint was filed lacked jurisdiction over the felony

offense presented, or the “subject matter.” 560 S.W.2d at 662; Hall, 794 S.W.2d at

919 (noting “subject matter” refers to offense).

      Here, the criminal district court, in regard to the Class A misdemeanor

offense of official oppression, lacked jurisdiction to enter a judgment on the

instrument upon which the State relied to toll limitations, i.e., a complaint. See

Hall, 794 S.W.2d at 919 (requiring power to enter judgment); see also TEX.

CONST. art. V, § 12(b) (providing “presentment of an indictment or information to

a court invests the court with jurisdiction of the cause” (emphasis added)). Thus,

the State’s September 9, 2013 complaint, standing alone without a timely filed

information or indictment, did not toll the statute of limitations. See TEX. CONST.




                                         15
art. V, § 12(b); TEX. CODE CRIM. PROC. ANN. 12.02(a); Hall, 829 S.W.2d at 187;

Ward, 560 S.W.2d at 661–62; Hall, 794 S.W.2d at 919.

      Again, article 12.02(a), as now rewritten in 2009 by the Texas Legislature,

expressly states that an “indictment or information for any Class A or Class B

misdemeanor may be presented within two years from the date of the commission

of the offense, and not afterward.” TEX. CODE CRIM. PROC. ANN. art. 12.02(a)

(emphasis added). Because the State did not present in the criminal district court

an indictment or information against appellee for the Class A misdemeanor offense

of official oppression within two years from the date of the commission of the

offense, i.e., by September 10, 2013, it could not do so afterward.            Id.

Accordingly, we hold that the criminal district court did not err in granting

appellee’s motion to quash and dismiss the October 24, 2014 indictment.

      We overrule the State’s three issues.

                                    Conclusion

      We affirm the order of the criminal district court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Bland, and Brown.

Publish. TEX. R. APP. P. 47.2(b).

                                         16
