Opinion
NO. 14-18-00789-CR
04-07-2020
AMANDA PERRY HAYES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court Fort Bend County, Texas
Trial Court Cause No. 14-DCR-065915B
MEMORANDUM OPINION
Appellant Amanda Perry Hayes appeals her conviction for the felony offense of tampering with physical evidence. In a single issue, appellant contends that the trial court erroneously denied her motion to quash the indictment because the applicable limitations period expired before she was charged. We conclude, however, that the limitations period was tolled by the pendency of a prior indictment that charged appellant based on the same conduct. Therefore, the trial court did not err in denying appellant's motion to quash. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.4.
Background
Laura Ackerson, a resident of Raleigh, North Carolina, was reported missing on July 18, 2011. Local police suspected that Grant Hayes, Ackerson's ex-husband, was involved in her disappearance. At that time, Grant was married to appellant. Grant and Ackerson were involved in a contentious custody dispute, and Ackerson was last seen heading to Grant's and appellant's apartment on July 13. Raleigh police officers recovered evidence implicating Grant and appellant in Ackerson's disappearance, which indicated that Ackerson may have been killed. For example, police learned that Grant purchased on July 14 a reciprocating saw, extra saw blades, waste bags, plastic sheeting, goggles, and gloves. The same day, appellant purchased bleach, gloves, and electrical tape. On July 16, Grant purchased several large coolers and bags of ice.
Officers searched appellant's apartment and noted a strong bleach smell and several bleached patches on the flooring. Additionally, items one would expect to find in an apartment, such as a shower curtain, were missing. After speaking to appellant's daughter, officers learned that a vacuum cleaner was missing; after viewing some photographs, the officers discovered several rugs were missing as well. Officers also discovered a note, purportedly signed by Ackerson, in which she agreed to give up custody of her children in exchange for $25,000. Police later recovered certain items from the trash company, some of which contained Ackerson's DNA.
Around the time that authorities began their investigation into Ackerson's disappearance, appellant and Hayes rented a U-Haul trailer and drove from Raleigh to Richmond, Texas. They brought with them their infant child and Grant's two children from his relationship with Ackerson. They told relatives they planned to deliver furniture to appellant's sister in Richmond.
After discovering that appellant and her family drove to Richmond, North Carolina police detectives investigating Ackerson's disappearance traveled there and contacted local officials. Based on information provided to police from appellant's sister in Richmond, police recovered Ackerson's dismembered body from a local creek. Appellant and Grant returned to North Carolina, where officials arrested them for Ackerson's murder.
Appellant was found guilty of second-degree murder in North Carolina and sentenced to 157 to 198 months' incarceration in the North Carolina Department of Corrections. Hayes was also found guilty of murder.
In Texas, meanwhile, appellant faced indictments relating to the disposal of Ackerson's body. In the first indictment, presented on April 7, 2014, cause number 14-DCR-065915, a Fort Bend County grand jury indicted appellant with the offense of tampering with physical evidence (the "original indictment"). At the top of the indictment, a table stated, "FELONY CHARGE: TAMP/FAB PHYS EVID W/INTENT TO IMPAIR HUM CORPSE/ F2," and the indictment contained the notation "37.09(c)" in the header. In the body of the original indictment, the State alleged:
The duly organized Grand Jury of Fort Bend County, Texas, presents in the District Court of Fort Bend County, Texas, that in Fort Bend County, Texas, [APPELLANT], hereinafter styled the Defendant, heretofore on or about July 24, 2011, then and there observe[d] a human corpse under circumstances in which a reasonable person would have believed that an offense had been committed, to-wit: murder or manslaughter, and the defendant did know or reasonably should have known that a law enforcement agency was not aware of the existence or location of the corpse, and the defendant did fail to report the existence of and location of the corpse to a law enforcement agency.Notwithstanding the original indictment's header, which referenced a felony offense, the above-quoted language alleged a Class A misdemeanor offense of tampering with physical evidence. See Tex. Penal Code § 37.09(d)(2). The case was assigned to the 400th District Court of Fort Bend County. In early 2016, appellant was extradited from North Carolina to Texas to face the tampering with physical evidence charges.
Appellant was re-indicted on June 25, 2018, cause number 14-DCR-065915A, for the offense of tampering with physical evidence (the "second indictment"). The second indictment's table and header tracked those of the original indictment. However, the body of the indictment provided:
The duly organized Grand Jury of Fort Bend County, Texas, presents in the District Court of Fort Bend County, Texas, that in Fort Bend County, Texas, [APPELLANT], hereafter styled the Defendant, heretofore on or about JULY 20, 2011,The second indictment alleged a second-degree felony offense of tampering with a human corpse. See Tex. Penal Code § 37.09(a), (c). The case related to the second indictment was assigned to the 400th District Court of Fort Bend County.
Paragraph I
did then and there, knowing that an investigation or official proceeding was pending or in progress, to wit: a missing persons or homicide investigation, intentionally or knowingly alter, destroy, or conceal a human corpse, with intent to impair its verity, legibility or availability as evidence in the investigation or official proceeding;
Paragraph II
did then and there, knowing that an offense had been committed, to wit: murder or manslaughter, intentionally or knowingly alter, destroy, or conceal a human corpse, with intent to impair its verity, legibility or availability as evidence in any subsequent investigation or official proceeding related to the offense[.]
On August 13, 2018, before appellant's trial commenced, the State re-indicted appellant, in cause number 14-DCR-065915B (the "third indictment"). The third indictment tracked the second indictment, but included the following tolling language:
And it is further presented that during a period from April 7, 2014 until August 13, 2018, an indictment charging the above offense was pending in a court of competent jurisdiction, namely cause number 14DCR65915 in the 400th District Court of Fort Bend County, Texas[.]The third indictment was also assigned to the 400th District Court.
Appellant filed a motion to quash the second and third indictments. She sought to dismiss her prosecution pursuant to Texas Code of Criminal Procedure article 27.09(2) because the second and third indictments were not presented within the applicable limitations period for the felony offense of tampering with evidence and, appellant continued, the original indictment did not toll limitations. After a hearing, the trial court denied appellant's motion to quash.
The State proceeded to trial under the third indictment. A jury convicted appellant of the second-degree felony offense of tampering with a human corpse as charged. The trial court sentenced appellant to twenty years in the Texas Department of Criminal Justice, Institutional Division, to run after she completes her North Carolina sentence.
Appellant timely appealed.
Analysis
In one issue, appellant argues that the trial court erred in denying her motion to quash the indictment because her prosecution under section 37.09 was barred by limitations. Specifically, appellant contends that (1) she was not charged with a felony offense until the second and third indictments, which were not presented until after limitations for such an offense expired, and (2) the original indictment charged only a misdemeanor and did not toll limitations because it was not filed in a court of competent jurisdiction.
A. Standard of Review and Applicable Law
We review a trial court's ruling on a motion to quash an indictment under a de novo standard because resolution generally does not turn on evaluation of witness testimony. See Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (citing State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004)); Brown v. State, 468 S.W.3d 158, 167-68 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). A defendant must be given sufficient notice before trial of the "nature and cause" of the accusation against her to enable the defendant to anticipate the State's evidence and prepare a proper defense. Kfouri v. State, 312 S.W.3d 89, 91 (Tex. App.—Houston [14th Dist.] 2010, no pet.). An indictment must also satisfy the constitutional requirement of subject-matter jurisdiction over "an offense." Teal v. State, 230 S.W.3d 172, 181 (Tex. Crim. App. 2007).
The statute of limitations for the felony offense of tampering with evidence falls within the general three-year limitations period for felonies. See Tex. Code Crim. Proc. art. 12.01(8). The offense at issue was alleged to have occurred on July 19, 2011. The limitations period therefore ended at midnight July 19, 2014. The original indictment was presented on April 7, 2014. The second and third indictments were not presented until June and August 2018, respectively. Thus, prosecution under the second and third indictments is barred unless the limitations period was tolled by the original indictment.
Article 12.05 tolls the limitations period "during the pendency of an indictment . . . . filed in a court of competent jurisdiction . . . ." Id. art. 12.05(b), (c). When filed in a court of competent jurisdiction, a prior indictment tolls the limitations period under article 12.05(b) for a subsequent indictment when both indictments allege "the same conduct, same act, or same transaction." Hernandez v. State, 127 S.W.3d 768, 774 (Tex. Crim. App. 2004); see Ex parte Smith, 178 S.W.3d 797, 802 (Tex. Crim. App. 2005). The tolling statute should be read "broadly because it was enacted to prevent illegal conduct from going unpunished when indictments ha[ve] defects." Hernandez, 127 S.W.3d at 771.
B. Court of Competent Jurisdiction
Appellant argues first that the limitations period for felony tampering was not tolled because the original indictment was not filed in a court of competent jurisdiction. Appellant urges that the district court never obtained jurisdiction over the original indictment because it alleged a misdemeanor and the district court is one of felony jurisdiction.
The original indictment properly tolls the limitations period if it was pending in a court of competent jurisdiction. Texas Code of Criminal Procedure article 12.05(b) states, "The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation." Tex. Code Crim. Proc. art. 12.05(b). The code defines the term "during the pendency" as
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.Id. art. 12.05(c).
For article 12.05's purposes, a "court of competent jurisdiction" is a court "with jurisdiction to try the case." State v. Hall, 829 S.W.2d 184, 187 (Tex. Crim. App. 1992). As applicable here, district courts have original jurisdiction over felony cases and jurisdiction over misdemeanors that are "included in the indictment." See Tex. Code Crim. Proc. arts. 4.05-.06; Murray v. State, 302 S.W.3d 874, 877 (Tex. Crim. App. 2009). County courts generally have jurisdiction over all misdemeanors (not otherwise within the exclusive jurisdiction of justice courts) when the fine exceeds $500. Tex. Code Crim. Proc. arts. 4.05, 4.07. Thus, as a general rule, felony offenses are prosecuted in district court, and most misdemeanor offenses are prosecuted in county courts. However, an indictment for a misdemeanor offense that could be charged as a felony may vest the district court with jurisdiction when record evidence shows an intent to charge the felony offense. See Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009); see also Pomier v. State, 326 S.W.3d 373, 383 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ("Here, although the indictment, by including an allegation regarding conduct occurring before the effective date of the statute, properly charged a misdemeanor, the felony offense exists, and the indictment's return in a felony court put appellant on notice that the State intended to charge him with a felony offense.").
District courts also have original jurisdiction over misdemeanors involving official misconduct and misdemeanors transferred under article 4.17 of the Code of Criminal Procedure. Tex. Code Crim. Proc. art. 4.05; see also Tex. Gov't Code § 26.045(a) (county courts do not have exclusive original jurisdiction over misdemeanors involving official misconduct).
As described above, the original indictment in today's case alleged the Class A misdemeanor offense of tampering with physical evidence. See Tex. Penal Code § 37.09(d)(2). However, tampering with physical evidence may be a misdemeanor or felony. See Tex. Penal Code § 37.09. A review of other parts of the original indictment reveals the State's intent to charge appellant with felony, rather than misdemeanor, tampering with evidence. For example, the original indictment stated, "FELONY CHARGE: TAMP/FAB PHYS EVID W/INTENT TO IMPAIR HUMAN CORPSE/ F2." Additionally, this case was not assigned to a county court; instead, it was assigned to 400th District Court of Fort Bend County, a court with felony jurisdiction. Thus, there is substantial record evidence showing that the State intended to charge the felony offense.
Presumably, the "F2" notation in the indictment indicates the State's intent to charge appellant with the second-degree felony offense of tampering with a human corpse. See Tex. Penal Code § 37.09(c) ("An offense under Subsection (a) or Subsection (d)(1) is a felony of the third degree, unless the thing altered, destroyed, or concealed is a human corpse, in which case the offense is a felony of the second degree." (emphasis added)).
In Kirkpatrick, the Court of Criminal appeals determined that jurisdiction vested in the district court, even though the indictment alleged a misdemeanor offense of tampering with a governmental record. See Kirkpatrick, 279 S.W.3d at 329. There, as here, "although the indictment properly charged a misdemeanor and lacked an element necessary to charge a felony, the felony offense exists, and the indictment's return in a felony court put appellant on notice that the charging of the felony offense was intended." Id. Additionally, as in today's case, the face of the indictment contained a heading indicating that the State intended to charge a felony offense. Id. Thus, under the rationale of Kirkpatrick, the district court in the present case was vested with jurisdiction over the original indictment despite the indictment's body alleging only a misdemeanor offense.
Our sister court in Houston has addressed a similar scenario to that present in today's case. See State v. Collier, 285 S.W.3d 133 (Tex. App.—Houston [1st Dist.] 2009, no pet.). There, Collier was indicted in August 2002 for tampering with a government record. Id. at 134-35. Although the indictment's body only asserted a Class A misdemeanor, "the indictment stated, 'Felony charge: Tampering with government records/felony-3' and the case was assigned to the 400th Judicial District Court of Fort Bend County." Id. at 35. Later, in January 2008, the State re-indicted the case, but included elements that made the charge a state jail felony. Id. Collier moved to set aside the state jail felony indictment on limitations grounds, urging that the Class A misdemeanor could not toll the limitations period as the district court lacked jurisdiction over the misdemeanor offense. Id. The trial court agreed and granted Collier's motion, setting aside the indictment. Id.
The First Court of Appeals reversed the trial court's ruling. Id. at 136-37. Applying Kirkpatrick, the court concluded that the original indictment tolled the statute of limitations because it was filed in a court of competent jurisdiction: the original indictment contained evidence indicating the grand jury's intent to charge felony tampering with a governmental record. Id. In so concluding, the court observed that a felony offense of tampering with a governmental record existed, the face of the original indictment included language associated with that felony offense, and the indictment was returned to a felony court. Id. The facts of Collier are quite similar to the facts of this case, in that a felony offense of tampering with evidence exists, the face of the original indictment included language associated with (and demonstrating an intent to charge) the felony offense, and the indictment was returned to a felony court. Similarly, we conclude that the original indictment in this case vested jurisdiction in the district court.
Appellant attempts to distinguish Collier by asserting that the original misdemeanor indictment in Collier was filed during the misdemeanor limitations period, while in her case, it was filed after limitations had expired. See Tex. Code. Crim. Proc. art. 12.02(a) ("An indictment or information for any Class A or Class B misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward."). Thus, she argues, the original indictment was invalid and could not vest jurisdiction in the trial court.
The original indictment was not presented until after two years following the date of the alleged offense.
We reject this argument for two reasons. As we previously discussed, the original indictment indicates on its face that the State intended to charge appellant with felony tampering with evidence, and the indictment was filed within the three-year period of limitations for this offense. See id. art. 12.01(8). Further, even an indictment that on its face indicates that an offense is time-barred confers jurisdiction on the trial court. E.g., State v. Yount, 853 S.W.2d 6, 8 (Tex. Crim. App. 1993) ("[A]n indictment which charges the commission of an offense barred by limitations still confers jurisdiction upon the trial court, such that the defendant must bring the defect to the attention of the trial court to preserve any error."); see also Ex parte Heilman, 456 S.W.3d 159, 168 (Tex. Crim. App. 2015) ("[A] limitations defense standing alone is merely a procedural 'act of grace' by the legislature that can be forfeited.").
Moreover, the First Court of Appeals distinguished State v. Hall, upon which both Collier and appellant rely:
In Hall, the court held that the original indictment for misdemeanor offenses that were pending in the district court were not presented in a court of competent jurisdiction. [Hall, 829 S.W.2d at 188]. After acknowledging that section 12(b) in article five of the Texas Constitution states that "the presentment of an indictment or information to a court invests the court with jurisdiction of the cause," the court determined that "[t]here is nothing in the legislative history of Article V, § 12(b), suggesting that it was believed that that article would automatically vest subject matter jurisdiction in any court in which an indictment was presented, thereby effectively abrogating Chapter 4 of the Texas Code of Criminal Procedure." Id. Hall's holding, however, appears to now be limited by Kirkpatrick's holding that allows a court to have subject matter jurisdiction when the record evidences an intent for the misdemeanor to be a felony and when there is no pretrial
challenge to the defective indictment.[] Compare id. with Kirkpatrick, .Collier, 285 S.W.3d at 137. We agree with our sister court's rationale.
We note that appellant did not bring any defect in the original indictment to the trial court's attention until after it was dismissed by the filing of the second indictment. We have not found any authority to suggest that a defendant may challenge an indictment that has been dismissed.
In sum, we conclude that the original indictment vested the district court with jurisdiction, and therefore article 12.05(b)'s tolling provision operated during the pendency of that indictment. Thus, the trial court did not err in denying appellant's motion to quash on this basis.
C. Indictments Arise from the Same Conduct
If prior and subsequent indictments charge different offenses but the offenses arise from "the same conduct, same act, or same transaction," the prior indictment tolls the limitations period. See Hernandez, 127 S.W.3d at 774. Construing her brief liberally, appellant suggests that the original indictment did not toll limitations for the third indictment because the indictments did not arise from the same conduct, act, or transaction. To the extent that she advances this argument, we disagree.
The original indictment charged appellant with failing to report the existence and location of a human corpse to law enforcement. The third indictment charged appellant with altering, destroying, or concealing a human corpse to impair its availability as evidence in an investigation or official proceeding. In applying the "same conduct, same act, or same transaction" rule from Hernandez, courts have focused on whether the original indictment fairly notified the defendant of the subsequent charges. See, e.g., Lenox v. State, Nos. 05-10-00618-CR, 05-10-00619-CR, 2011 WL 3480973, at *9-10 (Tex. App.—Dallas Aug. 9, 2011, pet. ref'd) (not designated for publication); Ex parte Brooks, No. 12-06-00378-CR, 2011 WL 165446, at *4-5 (Tex. App.—Tyler Jan. 19, 2011, pet. ref'd) (mem. op., not designated for publication); Ahmad v. State, 295 S.W.3d 731, 742 (Tex. App.—Fort Worth 2009, pet. ref'd); Green v. State, No. 14-08-00075-CR, 2009 WL 136917, at *3-4 (Tex. App.—Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem. op., not designated for publication). Here, all the indictments share the same factual basis: appellant's conduct vis-à-vis a human corpse occurring on or about July 19, 2011. The original indictment notified appellant of the need to preserve any defensive facts related to her conduct involving a human corpse around that date. Cf. Ahmad, 295 S.W.3d at 742 (first indictment alleging that defendant buried a training bomb arose from same conduct as second indictment alleging that defendant made a false report about a bomb and possessed a hoax bomb because "the offenses all arose from the same conduct: Appellant's possession of and report about some kind of bomb"); Greene, 2009 WL 136917, at *1 ("[T]he charged conduct in the prior indictments and the subsequent indictment were based on the same facts stemming from the same incident involving appellant's same conduct towards his niece in his vehicle as he drove her to her friend's home on April 3, 2005.").
In short, the original indictment was filed in a court of competent jurisdiction. It also alleged the same "conduct, act, or transaction" as the third indictment. Thus, the original indictment tolled the statute of limitations for the felony offense of tampering with a human corpse as alleged in the third indictment. The trial court did not err in denying appellant's motion to quash.
Conclusion
We overrule appellant's sole appellate issue. The trial court's judgment is affirmed.
/s/ Kevin Jewell
Justice Panel consists of Justices Wise, Jewell, and Poissant. Do Not Publish — Tex. R. App. P. 47.2(b).