Opinion
No. 14-06-00736-CR
Opinion filed May 7, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas Trial Court Cause No. 1075284.
OPINION ON REMAND
On July 24, 2007, this court affirmed the conviction of Christopher Vomakoyima Tita, the appellant, for aggregated theft of over $200,000. See Tita v. State, 230 S.W.3d 885 (Tex.App.-Houston [14th Dist.] 2007), rev'd, 267 S.W.3d 33 (Tex.Crim.App. 2008). On appellant's petition for discretionary review, the Court of Criminal Appeals reversed the judgment of this court and remanded the cause for a harm analysis. We find the error to be harmless and affirm the conviction. Appellant was prosecuted and convicted under an indictment which, on its face, was returned 245 days after the limitations period had expired. Appellant's motion to dismiss the indictment was denied after it was brought to the court's attention that the statute of limitations had been tolled by a series of previous indictments then pending before the court. Relying on Article 21.02(6) of the Texas Code of Criminal Procedure, the Court of Criminal Appeals held that an indictment must "indicate on its face that a prosecution thereunder is not barred by the applicable statute of limitations." Tita, 267 S.W.3d at 37. Thus, the indictment under which appellant was prosecuted is defective. The issue on remand is whether the pleading error was harmless. Presumably, the Court of Criminal Appeals would not have ordered us to conduct a harm analysis if the error presented here could, under no circumstances, be harmless. Further, the Court of Criminal Appeals has specifically requested that we conduct our analysis under the standard found in Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Tita, 267 S.W.3d at 39. Under this standard of harm, any error, defect, irregularity, or variance that did not affect the substantial rights of appellant must be disregarded. See Tex. R. App. P. 44.2(b). Article 21.02 of the Texas Code of Criminal Procedure sets forth the essential components of an indictment. To constitute an indictment, the instrument must, among other things, reflect that the time mentioned be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation. Tex. Code Crim. Proc. Ann. art. 21.02 (Vernon 2009). Formerly, an "indictment" returned after the expiration of the applicable limitations period, absent a tolling paragraph, was so fundamentally defective that it was not, in fact, an indictment. Ex parte Dickerson, 549 S.W.2d 202, 203 (Tex.Crim.App. 1977). Accordingly, it could not invest the trial court with jurisdiction. Id. In 1985, however, the people of this state amended Article V, Sec. 12 of the Texas Constitution. Now, an indictment is simply "a written instrument presented to a court by a grand jury charging a person with the commission of an offense." TEX. CONST. art. V, 12(b). While the "practice and procedures relating to the use of indictments . . ., including their contents, amendment, sufficiency, and requisites, are as provided by law," the "presentment of an indictment . . . to a court invests the court with jurisdiction of the cause." Id. Thus, this amendment, along with article 1.14(b) of the Texas Code of Criminal Procedure (adopted the same year) eliminated most sources of fundamental error in criminal pleadings. See Tex. Code Crim. Proc. Ann. Art. 1.14(b) (Vernon 2005). Reciting these developments in the law, the Court of Criminal Appeals held that "an indictment which charges the commission of an offense barred by limitations still confers jurisdiction upon the trial court." State v. Yount, 853 S.W.2d 6, 8 (Tex.Crim.App. 1993). Nevertheless, in light of Article 21.02 and the Court of Criminal Appeals opinion in this cause, appellant's motion to dismiss the indictment should have been granted. However, appellant's motion to dismiss was denied, and we must decide what harm, if any, was occasioned by the trial court's decision. Only errors affecting a substantial right are harmful. Tex. R. App. P. 44.2(b). Error affects a substantial right only when it has a substantial and injurious effect or influence in determining the jury's verdict. Rivera-Reyes v. State, 252 S.W.3d 781, 787 (Tex.App.-Houston [14th Dist.] 2008, no pet.). When trying to determine whether a trial court's error affected a substantial right, we must examine the possible outcomes if the indictment had not omitted a tolling paragraph. This examination generally considers two questions:
whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.Gollihar v. State, 46 S.W.3d 243, 248 (Tex.Crim.App. 2001) ( quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). Here, the limitations issue was never before the jury. The trial court conducted a hearing on appellant's motion to dismiss, reviewed the tolling documents, and denied the same on July 28, 2006. Trial began more than two weeks later on August 14, 2006. The absence of a tolling paragraph did not deprive appellant of notice of the conduct or offense for which he was being prosecuted; nor did it impair his ability to prepare an adequate defense at trial. Moreover, the inclusion or exclusion of a tolling paragraph could have no possible impact on future double jeopardy considerations. Had appellant's motion to dismiss been granted, it is difficult to see how appellant would have benefitted. The indictment on which appellant was convicted alleged that he committed an aggregated theft of more than $200,000 between June 28, 1998 and October 31, 2000. The State offered evidence showing that during that 27 month period, appellant stole more than $621,000. If the trial court had dismissed the indictment, the State still had time to amend the indictment prior to trial to include a tolling provision. See Tex. Code Crim. Proc. Ann. Art. 28.10(a) (Vernon 2006). Moreover, other live pleadings remained that were not time-barred and, hence, needed no tolling paragraph. For example, the indictment in cause number 1019875 alleged an aggregated theft of more than $200,000 committed between the dates of June 1, 1999, and October 30, 2000. While the temporal limits of this scheme were not as extensive, the State's evidence clearly demonstrates that appellant stole more than $200,000 during this 17 month period. Other errors far more serious than the one at issue here have been deemed harmless under Rule 44.2(b). See Compton v. State, 120 S.W.3d 375, 379 (Tex.App.-Texarkana 2003, pet. ref'd) (inadmissible evidence held to have but "slight effect" and, therefore, harmless); Jones v. State, 111 S.W.3d 600, 609 (Tex.App.-Dallas 2003, pet. ref'd) (improper admission of gruesome autopsy photographs held harmless); Linton v. State, 15 S.W.3d 615, 621 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (failure to read the enhancement paragraphs and defendant's plea at the beginning of the punishment hearing was harmless error); Westfall v. State, 10 S.W.3d 85, 94 (Tex.App.-Waco 1999, no pet.) (trial court's failure to grant defendant's request to inspect police officer's offense report after he had testified was harmless); Phelps v. State, 999 S.W.2d 512, 520 (Tex.App.-Eastland 1999, pet. ref'd) (improper admission of an extraneous offense was harmless). Appellant has not suggested how he was harmed, and we can conceive of no possible harm. After examining the record as a whole, we are reasonably assured the error did not influence the jury verdict or had but slight effect. Rivera-Reyes, 252 S.W.3d at 787. Accordingly, the error presented here is harmless and must be disregarded. The judgment of the trial court is affirmed.
The limitations period has been, and continues to be, tolled by successive indictments and appeals since March 14, 2005, the date of the first indictment. See Tex. Code Crim. Proc. Ann. art. 12.05(b) and (c) Vernon 2005).
Article 21.19 of the Texas Code of Criminal Procedure states that an Aindictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant. Tex. Code Crim. Proc. Ann. art. 21.19 (Vernon 2009) (emphasis added). Implicit in this statement is the notion that a defect of substance falls outside the parameters of Article 21.19 and is, thus, not amenable to a harmless error analysis. See G. Dix R. Dawson, Texas Practice: Criminal Practice and Procedure 21.147 (2nd ed. 2009); Sanchez v. State, 32 S.W.3d 687, 699 (Tex.App.CSan Antonio 2000), rev'd on other grounds, 120 S.W.3d 359 (Tex.Crim.App. 2003). The failure to include a tolling paragraph is a defect of substance. See Tex. Code Crim. Proc. Ann. art. 27.08(2) (Vernon 2006). Thus, under Article 21.19, a harmless error analysis would be inappropriate.