           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                       NO. PD-0658-16



                       Ex parte MIKE ANGEL ULLOA, Appellant

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE NINTH COURT OF APPEALS
                         MONTGOMERY COUNTY

               K ELLER, P.J., delivered the opinion of the unanimous Court.


       Does an information toll the running of limitations in a felony case when the defendant did

not waive his right to an indictment? We conclude that it does. Consequently, we affirm the

judgment of the court of appeals.

                                       I. BACKGROUND

       Appellant was charged with two counts of tampering with physical evidence.1 The alleged

date of the offenses was December 21, 2009. The offenses were originally charged by complaint and




       1
         The allegations were that he knowingly altered, destroyed, or concealed (1) a human corpse
and (2) duct tape while knowing that a murder investigation was pending or in progress.
                                                                                           ULLOA — 2

information on February 2, 2011.2 They were then charged by indictment on May 3, 2011. This

indictment was dismissed on April 17, 2012. The offenses were again charged by complaint and

information on February 26, 2014. Finally, the offenses were charged in the current indictment on

August 20, 2015.

        Appellant filed a pretrial habeas application alleging that the three-year limitations period for

the offenses had run. The question before the trial court was whether the running of limitations was

tolled during periods in which an information—but no indictment—was pending. If the pendency

of an information tolled the running of limitations, then the State’s prosecution was not time-barred,

but if tolling did not occur, then the three-year limitations period had expired. The trial court denied

the habeas application, and appellant appealed.

        Relying upon Article I, § 12 of the Texas Constitution and upon Ex parte Long,3 the court

of appeals held that an information tolls the running of limitations in a felony case.4 The court of

appeals said that, under Article I, §12, “the presentment of either an indictment or an information

to a court that would otherwise have jurisdiction over the case invests that court with jurisdiction of

the cause.”5 The court further explained that “return of an indictment is not necessarily required to

confer jurisdiction on a district court because a district court’s jurisdiction in a felony case vests upon

presentment of an information, and the defendant’s right to be charged by an indictment can be


        2
         The human corpse and duct tape allegations were the subject of separate complaints and
informations, all filed on the same day.
        3
            910 S.W.2d 485 (Tex. Crim. App. 1995).
        4
        Ex parte Ulloa, No. 09-15-00398-CR, 2016 Tex. App. LEXIS 2953, *5-6 (Tex.
App.—Beaumont March 23, 2016) (not designated for publication).
        5
            Id., 2016 Tex. App. LEXIS 2953, *5.
                                                                                      ULLOA — 3

waived.”6 The court of appeals affirmed the trial court’s denial of habeas relief.7

                                           II. ANALYSIS

       The tampering charges are both felonies.8 No provision specifically prescribes a limitations

period for tampering with physical evidence,9 so the catch-all provision for felonies applies,

providing a limitations period of three years.10

       The State argues that limitations was tolled during the pendency of the informations by virtue

of Article 12.05. That article provides:

       The time during the pendency of an indictment, information, or complaint shall not
       be computed in the period of limitation.11

The date on which appellant’s offenses were alleged to have been committed was December 21,

2009, and the current indictment was returned on August 20, 2015. The time period between those

two dates exceeds three years, but two informations were filed in this case. Each information was

terminated by the return of an indictment. If the time periods between the filing of each information

and the return of the corresponding superseding indictment are excluded, then less than three years




       6
            Id. at *6.
       7
         Id. Although the indictment did not contain tolling language referring to the informations,
the court of appeals held that it could be amended to include such language, so any defect in the
indictment was reparable, which meant that the trial court’s denial of the habeas application did not
affect appellant’s substantial rights. Id.
       8
          See TEX . PENAL CODE § 37.09(a), (c) (3rd degree felony unless tampering is with a human
corpse, then 2nd degree felony).
       9
            See TEX . CODE CRIM . PROC. art. 12.01.
       10
            Id. art. 12.01(7).
       11
            Id. art. 12.05(b).
                                                                                          ULLOA — 4

elapsed for limitations purposes. The question is whether these informations were pending for the

purpose of Article 12.05.

       When construing a statute, we give effect to the plain meaning of its text unless the language

of the statute is ambiguous or the plain meaning leads to absurd results that the legislature could not

have possibly intended.12 If the legislature has specifically defined a word or phrase, we must give

effect to that statutory definition.13 If the language of a statute is ambiguous, we may consider

extratextual factors such as the legislative history, the common law, and the consequences of a

particular construction.14 We also take into account any prior caselaw construing a statute.15

       The phrase “during the pendency” is defined by Article 12.05 to mean

       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.16

This language indicates that, as long as an information is pending in a court of competent

jurisdiction, then it is considered to be pending for purposes of Article 12.05. We have suggested

that the purpose of Article 12.05, including subsection (c), was to overturn the common law rule that

a charging instrument “on which no valid conviction or judgment can be had” would not toll the


       12
          Chase v. State, 448 S.W.3d 6, 11 (Tex. Crim. App. 2014); Boykin v. State, 818 S.W.2d
782, 785 (Tex. Crim. App. 1991).
       13
           TEX . GOV ’T CODE § 311.011(b) (“Word or phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”);
Ex parte Vela, 460 S.W.3d 610, 612 & n.6 (Tex. Crim. App. 2015).
       14
            Chase, 448 S.W.3d at 11; TEX . GOV ’T CODE § 311.023.
       15
            Williams v. State, 273 S.W.3d 200, 215 (Tex. Crim. App. 2008).
       16
            TEX . CODE CRIM . PROC. art. 12.05(c).
                                                                                        ULLOA — 5

running of limitations.17

         Appellant argues that a court is not a court of competent jurisdiction in a felony prosecution

if the charging instrument is an information because an information is not a correct charging

instrument for felony offenses. He relies upon Hultin v. State for the proposition that three things

are required for a court to be a court of competent jurisdiction: (1) authority over the person, (2)

authority over the subject matter, and (3) power to enter the particular judgment rendered.18 He also

relies upon Ex parte Ward and several court of appeals decisions for the proposition that an

inappropriate charging instrument does not confer jurisdiction sufficient to toll the running of

limitations.19

         Appellant’s contention that an information is not an appropriate charging instrument for a

felony offense is an overstatement because an information is appropriate for a noncapital felony if

the defendant waives the right to be accused by indictment.20 It is true that, in the past, a valid

waiver of indictment was necessary before jurisdiction in a felony case would be conferred by




         17
           Vasquez v. State, 557 S.W.2d 779, 783-84 (Tex. Crim. App. 1977) (in part quoting 21 Am.
Jur. 2d, § 163 pp. 229-30: “Generally, the return of an indictment or the filing of an information on
which no valid conviction or judgment can be had will not, in the absence of a statute expressly so
providing, operate to stop the running of the statute of limitations pending the return or filing of
another indictment or information.”) (emphasis in Vasquez).
         18
              See Hultin v. State, 171 Tex. Crim. 425, 434-35, 351 S.W.2d 248, 255 (Tex. Crim. App.
1961).
         19
           See Ex parte Ward, 560 S.W.2d 660 (Tex. Crim. App. 1978); State v. Drummond, 472
S.W.3d 857 (Tex. App.—Houston [1st Dist.] 2015), rev’d, 501 S.W.3d 78 (Tex. Crim. App. 2016);
State v. Edwards, 808 S.W.2d 662 (Tex. App.—Tyler 1991, no pet.); Marbach v. State, 773 S.W.2d
411 (Tex. App.—San Antonio 1989, no pet.).
         20
              TEX . CODE CRIM . PROC. art. 1.141.
                                                                                          ULLOA — 6

information.21 But a 1985 amendment to Article I, § 12 added the following language:

        The presentment of an indictment or information to a court invests the court with
        jurisdiction of the cause.22

In Ex parte Long, we held that the failure to satisfy the statutory requirements for waiving an

indictment did not deprive the trial court of jurisdiction.23 Appellant’s reliance on Hultin is

misplaced because that case predated the constitutional amendment. Although a court must still have

jurisdiction over the type of offense (i.e. subject matter jurisdiction) to be a court of competent

jurisdiction, Article I, § 12 confers jurisdiction over a person upon the filing of an indictment or

information.24



        21
            Ex parte Smith, 650 S.W.2d 68, 69 (Tex. Crim. App. 1982) (“Without the personal,
intelligent, voluntary and knowing waiver of indictment by an accused, while represented by counsel,
the trial court does not have jurisdiction to try an accused upon an information in a felony case.”)
        22
             TEX . CONST . art. I, § 12(b) (effective November 5, 1985).
        23
          910 S.W.2d at 486-87 (“[T]he trial court’s jurisdiction vested upon presentment of an
information to the court. Therefore, applicant has the burden of showing a denial of his right to
indictment.”).
        24
           Hultin relies upon 16 TEX . JUR. 2D 357, § 200, for the three requisites of jurisdiction. TEX .
JUR. 2D does not discuss “jurisdiction to enter the particular judgment rendered” in detail, but it cites
to Ex parte Degener, 30 Tex. Ct. App. 566, 17 S.W. 1111 (1891), which contains a discussion of the
concept. 16 TEX . JUR. 2D 334, § 181 n.12. See Degener, 30 Tex. Ct. App. at 574-77, 17 S.W. at
1113-15. This type of jurisdiction is separate from “the power to hear and determine the particular
matter, and to render some judgment thereon.” Id. at 574, 17 S.W. 1113. The meaning of “the
power to enter the particular judgment rendered” was subject to “much conflict of opinion” but this
type of jurisdiction was sometimes said to be lacking when the “judgment or order of commitment
is harsh, excessive, and unjust” or the conviction is for a matter for which “by law no man ought to
be punished” because there is a “clear and manifest want of criminality.” Id. at 575-76, 17 S.W. at
1114. This type of jurisdiction is not at issue here, so we need not decide whether it is still
recognized or its scope under contemporary jurisprudence. TEX . JUR. 2D also discusses “territorial
jurisdiction,” which involves whether the defendant has a connection to the State of Texas sufficient
to be prosecuted for a violation of its criminal laws. 16 TEX . JUR . 2D 352, § 196. This type of
jurisdiction is also not implicated here.
                                                                                          ULLOA — 7

        Likewise, Ex parte Ward predates the constitutional amendment. Ward is distinguishable

for other reasons as well. There, the State had filed a complaint in a justice court.25 The justice court

was not a court of competent jurisdiction because it did not have jurisdiction over felony offenses.26

Moreover, a complaint is not one of the two documents listed in Article I, § 12 that vest a trial court

with jurisdiction upon presentment.27

        The court of appeals cases that appellant cites are likewise distinguishable. Unlike Ward,

these cases involved a filing that was in a court with subject matter jurisdiction over the grade of the

offense in question, but like Ward, the document that was filed was a complaint, or at least purported

to be one.28 Although we reversed the court of appeals in Drummond, we declined to address

whether a complaint would toll limitations because we concluded that the document purporting to

be a complaint was also an information.29 We need not address today whether a complaint would

be sufficient to toll limitations in cases other than Class C misdemeanors. Our holding is simply that

an information is sufficient to do so in a felony case.

          We affirm the judgments below.

Delivered: March 22, 2017

Publish


        25
             Ward, 560 S.W.2d at 662.
        26
             Id.
        27
             See TEX . CONST . art. I, § 12(b) (referring to “indictment or information”).
        28
            Drummond, 472 S.W.3d at 860 (complaint filed without information did not toll
limitations for Class A misdemeanor); Edwards, 808 S.W.2d at 663 (complaint filed without
information did not toll limitations for Class B misdemeanor); Marbach, 773 S.W.2d at 412 (same).
        29
             Drummond, 501 S.W.3d at 79, 83, 84 & n.9.
