Texas Court of Criminal Appeals: Although Subsequent Indictment Recites Same Language as Original Indictment, SOL Isn’t Tolled Where Subsequent Indictment Fails to Charge Same Conduct, Act, or Transaction
by Douglas Ankney
The Texas Court of Criminal Appeals (“TCCA”) held that, although a subsequent indictment recited the same statutory language as the original indictment, the statute of limitations (“SOL”) was not tolled because the subsequent indictment failed to charge the same conduct, act, or transaction, as required by Hernandez v. State, 127 S.W.3d 768 (Tex. Ct. App. 2010), for tolling of the SOL.
On September 13, 2016, Timothy Mark West was charged with three counts of knowingly possessing or attempting to obtain the drug Tramadol by misrepresentation, fraud, forgery, deception, or subterfuge. On June 5, 2018, the State refiled the indictment, containing the same allegations word-for-word except that the alleged drug was changed from Tramadol to Oxycodone, and the first indictment was dismissed on motion of the State.
The trial court granted West’s motion to quash the second indictment because it failed to include tolling paragraphs. The State then filed a third indictment with the same allegations as the second, and the trial court granted West’s motion to quash the third indictment as being outside the SOL.
The State appealed, and the Court of Appeals (“COA”) reversed, concluding that the SOL had been tolled by the pendency of the first indictment. The TCCA granted West’s petition for discretionary review.
The TCCA observed that an indictment must state, on its face, that the prosecution is not time-barred by the governing SOL. Mercier v. State, 322 S.W.3d 258 (Tex. Crim. App. 2010). However, “the time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation,” that is, the SOL is tolled during the pendency of an indictment. Hernandez. But the TCCA noted that the SOL is not tolled by just any indictment. Id. It explained that a prior indictment tolls the SOL with respect to a subsequent indictment only when “both indictments allege the same conduct, same act, or same transaction.” Id. The applicable SOL is not tolled and thus bars a subsequent indictment if “it broadens or substantially amends the charges in the original indictment.” Id.
The TCCA stated that the fundamental purpose of an indictment is to provide the defendant with adequate notice of what he is being charged with so that he has a meaningful opportunity to prepare his defense. See id. The rationale for a SOL is to shield the defendant from having to defend against prosecution when the ability to mount a defense has been degraded due to basic facts having been obscured or lost through the passage of time. Toussie v. United States, 397 U.S. 112 (1970). In order for a defendant to have the ability to preserve critical facts for his defense, he must be provided with adequate notice of the charges against him. Hernandez.
Consequently, a prior indictment may toll the applicable SOL if that indictment provides adequate notice to the defendant of the substance of the subsequent indictment. Id.
The TCCA then discussed Hernandez and contrasted it with the present case. In Hernandez, the earlier indictment charged the defendant with possession of amphetamine, but the subsequent indictment charged him with possession of methamphetamine. The Hernandez Court held that the first indictment tolled the applicable three-year SOL that would have otherwise barred the second indictment. The Hernandez Court reasoned that both indictments charged identical conduct—possession of a controlled substance—with the only difference being the proof involved would be slightly different in identifying the drug in question. But “every other element would rest on the same proof,” the Hernandez Court explained.
The TCCA stated that Hernandez instructs that for a prior indictment to adequately put defendant on notice to preserve the necessary facts and evidence to mount a defense against a subsequent indictment, “the two indictments must involve the same event.” In contrast to Hernandez, the two indictments in this case are not the same, despite using identical language, since “the allegations involved in this case allow for separate and discrete (not the same) conduct, acts, or transactions because “possessing a drug is different from attempting to possess a drug,” the TCCA explained. That is, the statute in question can be violated in a number of different ways in contrast to the situation in Hernandez where the sole means of violating the statute was by possession of the drug. Thus, “this case is not like Hernandez,” the TCCA determined and ruled that the SOL was not tolled.
Accordingly, the TCCA reversed the COA and affirmed the trial court. See: State v. West, 632 S.W.3d 908 (Tex. Crim. App. 2021).
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Related legal case
State v. West
|Cite||632 S.W.3d 908 (Tex. Crim. App. 2021)|
|Level||State Court of Appeals|