Opinion
NO. 09-15-00398-CR
03-23-2016
EX PARTE MIKE ANGEL ULLOA
On Appeal from the 221st District Court Montgomery County, Texas
Trial Cause No. 14-02-02317-CR
MEMORANDUM OPINION
In an appeal from the denial of a pre-trial application for a writ of habeas corpus, Mike Angel Ulloa contends that because the indictment, on its face, reveals the charges against him are barred by the statute of limitations, he is entitled to have the indictment dismissed. The State argues that because the trial court was aware that the State had filed a motion to amend the indictment to add tolling language when it ruled on Ulloa's application, any error arising from the denial of Ulloa's request seeking habeas relief was harmless. We conclude that the record reflects that Ulloa's indictment for tampering with evidence can be amended before his trial to add tolling language that is responsive to Ulloa's claim that limitations bars his prosecution. Therefore, we affirm the trial court's order denying Ulloa's application for habeas relief.
We granted Ulloa's motion to take judicial notice of the record of a prior appeal of proceedings that arose under a previous indictment, and we directed the clerk to file a copy of the record in this appeal. See generally Tex. R. Evid. 201; Tex. R. App. P. 34.5(c), 34.6(d). --------
Background
In August 2015, Ulloa was indicted in cause number 14-02-02317-CR on two counts that alleged that on or about December 21, 2009, he had tampered with evidence. Previously, in cause number 11-02-01188-CR, Ulloa had been charged with the same conduct but the indictment was dismissed.
Challenging the validity of the August 2015 indictment, Ulloa filed a pre-trial application for a writ of habeas corpus, and he asked the trial court to dismiss the indictment returned in August 2015 with prejudice. In his application, Ulloa alleged that more than three years had passed from the date the indictment alleged the evidence tampering had occurred and the date the grand jury returned the indictment charging him with two counts alleging he had tampered with evidence. See generally Tex. Code Crim. Proc. Ann. art. 12.01(7) (West Supp. 2015). However, excluding the period from the filing of the informations to the dismissal of Ulloa's indictment in cause number 11-02-01188-CR, and the period from the filing of the informations to the date the grand jury returned the indictment in cause number 14-02-02317-CR (the indictment at issue in this appeal), less than three years elapsed between the alleged date of the offense and the indictment at issue in this appeal.
In his application for habeas relief, Ulloa alleged that he had previously been indicted for the conduct at issue, that the indictment for that conduct had been dismissed, and that he was re-indicted for the same offenses that involved the same conduct. On the day Ulloa amended his application for habeas relief, the State filed a motion to amend the indictment returned by the grand jury that relates to cause number 14-02-02317-CR to add a tolling paragraph to the language in the indictment. See generally Tex. Code Crim. Proc. Ann. art. 12.05(b) (West 2015).
During the hearing on Ulloa's application seeking habeas relief, Ulloa objected to the trial court hearing the State's motion seeking to amend the indictment in his case, arguing that the motion was not on the agenda. With respect to his application, Ulloa argued that the August 2015 indictment was void on its face because it lacked an assertion that the statute of limitations had been tolled. Alternatively, Ulloa suggested during the hearing that the State's proposed amendment was outside the limitations period. Noting that the State initially charged Ulloa with the conduct at issue in 2011, and that the State had filed a motion to amend the indictment, the trial court denied Ulloa's request for habeas relief.
On appeal, Ulloa relies on Ex parte Martin to support his argument that the trial court, during the habeas hearing, should not have considered anything but the face of the August 2015 indictment in determining whether he was entitled to relief. See generally 159 S.W.3d 262, 263 (Tex. App.—Beaumont 2005, pet. ref'd). However, in Martin, we relied on the fact that there was no evidence in the record that Martin had been charged with any conduct or act that would constitute the offense he committed before limitations expired; in this case, the record contains information that Ulloa was charged as early as 2011 with the same conduct that serves as the basis for the indictment the grand jury returned in 2015. Id. at 265. Additionally, during the habeas hearing in this case, the State had a pending motion to amend the indictment; in its motion, the State asserts that it will cure the defect in the indictment regarding limitations by alleging that limitations was tolled during periods that prevent its prosecution from being barred by limitations.
Under the Texas Code of Criminal Procedure, an indictment may be amended if a defendant's exception to the form or substance of the indictment is sustained and the cause may proceed on the amended indictment. Tex. Code. Crim. Proc. Ann. art. 28.09 (West 2006). Additionally, the Legislature has authorized the State to amend the indictment before the day the defendant's trial on the merits starts. See Tex. Code Crim. Proc. Ann. art. 29.10 (West 2006). Generally, a trial court errs if it dismisses an indictment that can be cured without allowing the State an opportunity to amend in a manner that would cure an alleged defect. See State v. Chardin, 14 S.W.3d 829, 831 (Tex. App.—Austin 2000, pet. ref'd).
In response to the arguments the State advanced in its brief, Ulloa argues in his reply brief that the indictment contains an irreparable jurisdictional defect because an information is not the proper pleading used to charge a defendant with a felony. However, the presentment of either an indictment or an information to a court that would otherwise have jurisdiction over the case invests that court with jurisdiction of the cause. Tex. Const. art. I, § 12; see also Ex parte Matthews, 933 S.W.2d 134, 138 (Tex. Crim. App. 1996) ("The prosecution was free to toll running of the statute of limitation by simply filing and pursuing pre-indictment whatever accusatory pleading or paper it preferred for that purpose."). The informations that are at issue in Ulloa's case were all filed in a district court with jurisdiction to hear cases involving felonies. See Tex. Code Crim. Proc. Ann. art. 4.05 (West 2015). The return of an indictment is not necessarily required to confer jurisdiction on a district court because a district court's jurisdiction in a felony case vests upon presentment of an information, and the defendant's right to be charged by an indictment can be waived. Ex parte Long, 910 S.W.2d 485, 486-87 (Tex. Crim. App. 1995).
In this case, the record shows that the trial court recognized that the August 2015 indictment lacked a tolling paragraph, but that the defect was reparable by amendment. See Tex. Code Crim. Proc. Ann. art. 28.09. Under the circumstances in this case, we hold that Ulloa has not demonstrated the trial court's denial of his application affected his substantial rights. See Tex. R. App. P. 44.2(b). We overrule Ulloa's only issue and affirm the trial court's order denying Ulloa's request seeking habeas relief.
AFFIRMED.
/s/_________
HOLLIS HORTON
Justice Submitted on December 9, 2015
Opinion Delivered March 23, 2016
Do Not Publish Before McKeithen, C.J., Horton and Johnson, JJ.