Bonner v. State

BOYD, Justice.

This case presents the question which is of first impression in this state, whether prosecution is barred for felony delivery of a controlled substance when the complaint was filed within the limitation period but an indictment was not returned until that period had expired. For reasons hereinafter expressed, we hold prosecution is not barred and affirm the judgment of the trial court.

On September 17, 1986, a complaint was filed in the trial court charging appellant with felony delivery of a controlled substance. It alleged the offense was committed on or about August 3, 1986. On August 1,1991, the Potter County Grand Jury returned an indictment charging appellant with the above offense. Since Texas Code of Criminal Procedure art. 12.01(5)1 provides the period of limitations for the charged offense is three years from the date of the offense, the indictment was returned almost two years beyond that period.

In an effort to show the running of the statute was tolled by the provision of art. 12.05, the indictment contained the following:

And the GRAND JURORS aforesaid do further present that on or about the 17th day of September, 1986 a felony complaint charging the said CRAIG BONNER with the offense hereinbefore charged in this indictment was duly filed in the 181st District Court in and for Potter County, Texas and said felony complaint was pending in said 181st District Court in and for Potter County, Texas at the time of the return of this indictment.

On August 15, 1991, appellant filed a motion to quash and set aside the indictment on the ground it was defective because it alleged an offense which was barred by the statute of limitations. That motion was denied on November 18, 1991. Thereafter, appellant entered a non-negotiated plea of guilty, was granted deferred adjudication and placed on probation for a period of ten years. Parenthetically, appellant falls within the expressed perimeters of Dillehey v. State, 815 S.W.2d 623 (Tex.Crim.App.1991), and is entitled to pursue this appeal.

In one point, appellant asserts the trial court reversibly erred in failing to sustain his motion to quash and set aside the indictment as it does not allege facts sufficient to toll the statute of limitations. While appellant acknowledges it is established that the filing of an indictment or of an information is a sufficient commencement of a prosecution to prevent the running of a statute of limitations, he contends the mere filing of a complaint is not sufficient to accomplish that result. In making that contention, he places primary reliance upon the decision in State v. Edwards, 808 S.W.2d 662 (Tex.App.-Tyler 1991, no pet.).

In the Edwards case, the State 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. *136The limitation period for such misdemeanor offense is two years. The State contended that the limitation period had been tolled under art. 12.05 because a complaint meeting the requirements of art. 15.05 had been filed within nine months of the commission of the offense and an arrest warrant issued. In holding that the statute had not been tolled, the Edwards court noted the requirements of art. 15.05 were different from those required under art. 21.22 to support a misdemeanor information. Under art. 21.22, it held, 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 art. 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.” State v. Edwards, 808 S.W.2d at 663; see also Marbach v. State, 773 S.W.2d 411 (Tex.App.-San Antonio 1989, no pet.).

Appellant posits that an indictment is the only accusatory pleading appropriate to invoke the jurisdiction of a district court, and, applying the logic of the Edwards case, concludes that the mere filing of a complaint in the absence of the presentment of an indictment is not sufficient to toll the applicable statute of limitations. We disagree.

In Vasquez v. State, 557 S.W.2d 779 (Tex.Crim.App.1977), the Court observed that at common law there was no limitation as to the time in which offenses may be prosecuted. It compared the passage of statutes of limitation as “acts of grace” by the sovereign, and suggested that they be considered as equivalent to acts of amnesty. It also observed that such statutes are measures of public policy entirely subject to the will of the Legislature. Id. at 781; at 781 n. 2.

Subsections (b) and (c) of art. 12.05, the relevant limitation statute, provide as follows:

(b) The time during the pendency of the 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, (emphasis added)

In Ex parte Ward, 560 S.W.2d 660 (Tex.Crim.App.1978), the Court was confronted with the question whether a complaint filed in a justice court would toll the running of the statute of limitations in a felony case. With the comment that “[Wjhile a justice court had authority to take a complaint and issue a warrant of arrest, we find that such court [the justice court] did not have jurisdiction of the felony offense charged herein so as to come within the ambit of Art. 12.05,” the court held the statute of limitations was not tolled and prosecution in the case was barred. Id. at 662.

En route to its decision, the Ward Court cited the holding in the seminal case of Hultin v. State, 171 Tex.Crim. 425, 351 S.W.2d 248, 255 (1961), that jurisdiction “includes the three essentials necessary to the jurisdiction of a court; the court must have authority over the person and the subject matter, and it must have power to enter the particular judgment rendered.”

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.

That conclusion is reinforced by the language of art. 12.05(b), in particular, that portion which reads that “[T]he 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 *137the 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. Since the creation of periods of limitation is a matter of legislative prerogative, the decision of that body is binding upon us.

Even though the long delay between the filing of the complaint and the return of the indictment is not explained in this record, nevertheless, we must follow the mandate of the statute and hold that the filing of the instant complaint, in the district court, the court of competent jurisdiction to try the charge, was sufficient to invoke the jurisdiction of that court and to toll the limitation period. The Edwards and Marbach cases are distinguishable in that they dealt with the different requisites in a misdemeanor case not applicable here.

Accordingly, appellant’s point of error is overruled and the judgment of the trial court affirmed.

Before REYNOLDS, C.J., and BOYD and POFF, JJ.

. Later references to article numbers are to those articles of the Texas Code of Criminal Procedure, unless otherwise specifically designated.