Opinion
No. 924-98
June 16, 1999
Appeal from the 226th District Court, Bexar County, Sid L. Harle, Judge.
Joel Perez, for appellant.
Mary Beth Welsh, Asst. Dist. Atty., Betty Marshall, Asst. State's Atty., Matthew Paul, State's Atty., for the State.
The opinion of the Court was delivered per curiam.
OPINION
Appellant was indicted for capital murder. He filed a pre-trial application for a writ of habeas corpus, claiming his prosecution was barred under Article 32.01, V.A.C.C.P., because his indictment was not timely. The trial court denied relief, and Appellant appealed. The Court of Appeals reversed in an unpublished opinion. Ex parte Torres, No. 04-96-00161-CR (Tex.App.-San Antonio, delivered February 19, 1997). The District Attorney filed a motion for rehearing in the Court of Appeals, arguing that Appellant was not entitled to dismissal despite the untimeliness of the indictment. The Court of Appeals granted the District Attorney's motion for rehearing and addressed its claims, but overruled the grounds raised. Ex parte Torres, 966 S.W.2d 723 (Tex.App.-San Antonio 1998).
The District Attorney and the State Prosecuting Attorney filed petitions for discretionary review. In ground two of its petition, the District Attorney contends that according to Tatum v. State, 505 S.W.2d 548 (Tex.Crim.App. 1974), Art. 32.01 has no application once an indictment has been filed. The Court of Appeals did not explicitly address Tatum in its analysis of this issue. In Brooks v. State, 990 S.W.2d 278 No. 72,806 (Tex.Crim.App. delivered March 31, 1999), this Court relied on Tatum and denied an Art. 32.01 claim, because the defendant did not raise the issue until after indictment.
Accordingly, we grant ground two of the District Attorney's petition for discretionary review, vacate the Court of Appeals' judgment, and remand to that court for reconsideration in light ofBrooks. The District Attorney's remaining grounds and the State Prosecuting Attorney's petition for discretionary review are refused.