In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00041-CR
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BEULAH JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
_________________________________ ______________________
On Appeal from the County Court at Law No. 3
Jefferson County, Texas
Trial Cause No. 296066
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MEMORANDUM OPINION
Beulah Johnson pleaded guilty to misdemeanor theft and the trial court
sentenced Johnson to 180 days in jail. In three appellate issues, Johnson contends
that her prosecution for misdemeanor theft is statutorily barred and her right to
counsel was violated. We reverse the trial court’s judgment and we render
judgment that Johnson is acquitted of misdemeanor theft.
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Statute of Limitations
In issues one and two, Johnson contends that her prosecution for
misdemeanor theft was barred by the statute of limitations because: (1) tolling
language is not found on the information; and (2) she was originally charged with a
felony but that charge was not based on the same conduct, act, or transaction as the
misdemeanor charge. The record suggests that the forgery case was dismissed,
followed by a new charge for misdemeanor theft. The record does not contain a
copy of the original charging instrument. The misdemeanor charge alleges that on
or about November 5, 2009, Johnson committed theft of United States currency in
the amount of $50 to $500, a class B misdemeanor. Tex. Penal Code Ann. §
31.03(e)(2)(A)(i) (West Supp. 2013).
An information or indictment for a Class B misdemeanor may be presented
within two years from the date of the commission of the offense, but not afterward.
Tex. Code Crim. Proc. Ann. art. 12.02(a) (West Supp. 2013). Under certain
circumstances, the limitations period is suspended. Id. at art. 12.05 (West 2005);
see Hernandez v. State, 127 S.W.3d 768, 774 (Tex. Crim. App. 2004). In this case,
the information was presented on January 9, 2013, more than two years after the
theft was committed. The State concedes that, absent any tolling of the statute of
limitations, Johnson was charged outside the limitations period. The information
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charging Johnson with theft does not contain the requisite tolling language. See
Tex. Code Crim. Proc. Ann. arts. 21.21(6), 21.23 (West 2009); see also Tita v.
State, 267 S.W.3d 33, 37 (Tex. Crim. App. 2008) (A charging instrument must
show, on its face, that the prosecution is not barred by the applicable statute of
limitations.). Accordingly, Johnson’s prosecution was barred by the statute of
limitations. See Phillips v. State, 362 S.W.3d 606, 617-18 (Tex. Crim. App. 2011).
We sustain issue one and need not address issue two. See Tex. R. App. P. 47.1.
Right to Counsel
In issue three, Johnson contends that the trial court violated her right to
counsel by not allowing her to have counsel of her choice. At the indigency
hearing, Johnson told the trial court that she had previously attempted to fire trial
counsel. A record of the plea hearing is not before us, and Johnson does not
explain why she wanted new counsel or why the trial court’s denial of her request
was improper. Thus, we conclude that Johnson has inadequately briefed any
complaint regarding the trial court’s denial of her request to terminate trial
counsel’s services. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record.”). Because Johnson’s prosecution for theft is barred by the
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statute of limitations, we reverse the trial court’s judgment and we render judgment
that Johnson is acquitted of misdemeanor theft.
REVERSED AND RENDERED.
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STEVE McKEITHEN
Chief Justice
Submitted on April 30, 2014
Opinion Delivered May 7, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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