Opinion
NO. 09-11-00638-CR
01-25-2012
EX PARTE CERDELL BENNETT
On Appeal from the 252nd District Court Jefferson County, Texas
Trial Cause No. 2352 (11-11258)
MEMORANDUM OPINION
Appellant Cerdell Bennett filed a pre-trial application for writ of habeas corpus, and the trial court signed an order denying the requested relief. Bennett then filed this appeal, in which he raises four issues for our consideration. We affirm the trial court's order.
In his first issue, Bennett argues that the indictment against him was not timely filed. As support for his argument, Bennett cites article 32.01 of the Texas Code of Criminal Procedure, which provides that when a defendant is held in custody or held to bail, the indictment must be presented "on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever date is later." Tex. Code Crim. Proc. Ann. art. 32.01 (West 2006). The record reflects that the indictment was filed on March 10, 2011, and Bennett was arrested on October 6, 2011. Therefore, article 32.01 is inapposite.
The indictment alleges that Bennett committed the offenses of bribery and possession of a prohibited substance in a correctional facility on or about September 6, 2010. The file-stamp on the indictment indicates that the indictment was filed on March 10, 2011. The statute of limitations for both bribery and possession of a prohibited substance in a correctional facility is three years. See id. art. 12.01(7) (West Supp. 2011). Bennett was indicted less than one year after the date of his alleged offenses. The indictment was timely filed. We overrule issue one.
Article 12.01(7) has been amended since the date of Bennett's offense. However, because the amendment is not material to this case, we cite the current version.
In his second issue, Bennett contends that the indictment was not presented to him "by way of proper officer, certified mail[,] or any other means." The record reflects that the capias was executed on October 6, 2011, when Bennett was arrested. Bennett states in his brief that he was notified of the indictment at his first court date "on or around October 17, 2011[.]" In addition, the record does not reflect that Bennett's case has been tried. Therefore, assuming without deciding that the indictment has not been presented to Bennett, Bennett may still be timely served with the indictment prior to trial. Accordingly, we overrule issue two.
In his third issue, Bennett asserts that he was not permitted ten days to file pleadings, as required by Articles 27.11 and 27.12 of the Code of Criminal Procedure. See id. arts. 27.11, 27.12 (West 2006). As discussed above, the record does not reflect that Bennett's case had gone to trial at the time he filed his application for writ of habeas corpus. Therefore, Bennett's statutory right to ten days' notice is still available. Additionally, Bennett contends in issue three that he was denied the opportunity to challenge the grand jury array. However, as Bennett correctly points out in his brief, such a challenge may be presented in a motion to quash the indictment, and Bennett may still file such a motion. See id. art. 27.03 (West 2006). Accordingly, we overrule issue three.
In his fourth issue, Bennett contends that the trial court erred by appointing an attorney who had a conflict of interest. The record and Bennett's brief reflect that the first attorney appointed to the case had a conflict of interest, and the trial court removed said attorney from the case and appointed another attorney to represent Bennett. Bennett contends that the first attorney's receipt of the indictment and other allegedly privileged information denied him his due process rights. The record does not support Bennett's assertions. See generally Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005) (An applicant for a writ of habeas corpus must prove facts that would entitle him to relief and ensure that a sufficient record is presented.). Accordingly, we overrule issue four and affirm the trial court's order.
AFFIRMED.
__________________
STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.