1) the time that a defendant is absent from the state; orAccordingly, if the state dismisses an indictment and then reissues the indictment, charging the same offense, the statute of limitations for that offense would be tolled for the entire period that the previous indictment was pending. But what if the new indictment alleges a different offense than the first indictment? Is the limitation period still tolled?
2) the time that another indictment is pending.
This was the issue presented to the Texas Court of Criminal Appeals in Ex Parte Brooks. In that case, the State originally charged the defendant with theft that was alleged to have occurred "between 7-1-98 through 4-1-2000." Prior to trial, however, and over the defendant's objection, the trial court allowed the State to dismiss the indictment. The State then re-indicted the defendant and included specific language alleging aggregated theft under Texas Penal Code Section 31.09.
Via a pretrial application for a Writ of Habeas Corpus, the defendant claimed that prosecution on the new indictment was barred by the statute of limitations. His reasoning was that the statute of limitations was not tolled by the previous indictment because the previous indictment alleged a separate offense (felony theft versus aggregated felony theft). The trial court, along with the 12th District Court of Appeals denied relief, never actually considering whether the limitations period was tolled by the previous indictment.
The CCA, noting that its discretionary power permits review only of decisions by the lower court, reversed the judgment of the 12th Court of Appeals and remanded the case back to that court to consider the tolling issue.
Judge Meyers concurred.
So the real precedential value of this case is the holding that a pretrial application for writ of habeas corpus is a proper means to challenge this limitations issue. We will have to wait for the more substantive and interesting issue as the 12th Court takes a second look.
