addressing whether an indictment is facially incomplete and analyzing the sufficiency of the evidence in relation to that indictment
How later courts described this case
- addressing whether an indictment is facially incomplete and analyzing the sufficiency of the evidence in relation to that indictment
- pretrial habeas appropriate to challenge that face of indictment shows prosecution barred by statute of limitations
- pretrial petition for writ of habeas corpus held permissible to challenge the constitutionality of a tolling statute, TexCode Ceim.PROcAnn. art. 12.05(a)
- appellant challenged the charging instrument as facially unconstitutional in a habeas corpus proceeding
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
There is no authority in our law for a pretrial habeas corpus attacking the validity of allegations in the charging instrument that the applicable tolling statute of limitations “as applied to the facts and circumstances of the present offense” is unconstitutional on several asserted grounds. Ex parte Matthews, 846 S.W.2d 152, at 154 (Tex.App.— Houston 1993).
The code of criminal procedure enumerates authorized pleadings of a defendant in Article 27.02, V.A.C.C.P. The first is “(1) A motion to set aside or an exception to an indictment or information for some matter of form or substance.”
Grounds for a motion to set aside are prescribed generally and specifically in Article 27.03, V.A.C.C.P. and do not embrace the ground asserted in the instant application for habeas corpus.
Exclusive reasons for an exception for some matter of substance are delineated in Article 27.08, V.A.C.C.P., and one at least relates to the asserted ground, viz:
“2. That it appears from the face thereof that a prosecution for the offense is barred by lapse of time[.]”
Because the record here clearly shows that applicant relied on stipulated evidence and documentary evidence going to his constitutional claims, appellant cannot be invoking Article 27.08, 2.
Thus the record also shows that applicant is not entitled to appeal because he does not make a facial challenge to the indictment; the authorities cited and discussed by the majority will not “control the disposition of this cause.” Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978) (facially statute of limitations not tolled), and Ex parte Meyer, 357 *44 S.W.2d 754 (Tex.Cr.App.1962) (facially one statutory provision held void; another held valid); Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977) (facially indictment showed prosecution barred).
Under proper pretrial pleadings, as the court of appeals noted, applicant must make her complaints in regular order and take an appeal after trial on the merits. Matthews, supra, at 153 .
McCORMICK, P.J., joins.