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State v Plambeck

November 23, 2005
Nos. PD-0376-05 & PD-0377-05
Dissenting opinion by Judge Johnson
Link to Majority opinion by Presiding Judge Keller


   

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


Nos. PD-0376-05, PD-0377-05


THE STATE OF TEXAS

v.

MICHAEL KENT PLAMBECK, Appellee


ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

HIDALGO COUNTY


Johnson, J., filed a dissenting opinion in which Meyers, Price and Womack, JJ., joined.

D I S S E N T I N G O P I N I O N

The state alleged that appellee committed barratry and conspiracy to commit barratry. The alleged acts occurred on September 30, 1997 (conspiracy), and in March and December of 1998 (barratry). The first sets of indictments were returned on March 21, 2000 (barratry; 7 counts), and April 18, 2000 (conspiracy; 2 counts), approximately five and a half months before the statute of limitations on the earliest alleged offense expired, three years after that alleged offense. (1) Two subsequent sets of indictments were returned on December 19, 2001, and April 30, 2002. The statute of limitations was tolled during the pendency of those indictments. (2)

After the third set of indictments was returned, appellee moved to dismiss those indictments and also filed a pretrial application for a writ of habeas corpus that asserted that the third set of indictments was barred by limitations. The trial court dismissed the third set of indictments over the state's objection and granted both the writ and the relief appellee had requested, that is, dismissal of the indictments for failure to present them within the three-year statute of limitations. (3) The state appealed and raised two issues.

Issue One: The trial court erred in granting appellee's pretrial writ of habeas corpus on limitations grounds because the limitations period was tolled by the pendency of continuous indictments charging offenses under the same penal statute.

Issue Two: The trial court erred in dismissing the indictments on grounds of "improper grand jury proceeding" because (1) appellee failed to meet his burden of proving that the state's error in allowing an investigator to question grand jury witnesses violated some constitutional right, and (2) appellee failed to meet his burden of proving that dismissal of the indictments was necessary to cure the error.

The court of appeals affirmed the judgment of the trial court on Issue Two but did not address Issue One, thereby leaving in force the trial court's (perhaps erroneous) finding that further prosecution of appellee for the charged offenses was barred because the limitation period had expired. The state petitioned this Court for review on a single ground that challenged the court of appeals's decision on the motion to dismiss; it did not appeal the failure of the court of appeals to "address[] every issue raised and necessary to final disposition of the appeal. Tex. Rule App. Proc. 47.1.

The court of appeals stated that, because "our decision regarding the motion to dismiss the indictments is sufficient to determine the outcome of the case, we decline to address the State's remaining issue on appeal regarding the writ of habeas corpus as unnecessary and redundant." It was then incumbent upon the state to complain of that failure in its petition in this Court because, even if we held that the court of appeals erred and reversed its judgment, absent a successful challenge to the grant of habeas corpus relief, the state's position would not change; the court of appeals did not undo the relief granted to appellee by way of his writ of habeas corpus, and further prosecution is still barred.

I believe that this cause should be dismissed as improvidently granted. Because the majority does not do so, I respectfully dissent.

Johnson, J.


Filed: November 23, 2005

En banc

Publish

1. Texas Code of Crim. Proc. Art. 12.01(5)(1997)("felony indictments may be presented within these limits, and not afterward: ... (5) three years from the date of the commission of the offense: all other felonies.); Texas Code of Crim. Proc. Art. 12.03(b)(1997)("The limitations period for criminal conspiracy ... is the same as that of the most serious offense that is the object of the conspiracy....").

2. Texas Code of Crim. Proc. Art. 12.05(b),(c)(1997)("(b) The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.") The statute does not speak directly as to whether the statute is tolled during an appeal. ("(c) The term 'during the pendency,' as used herein, means 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.").

3. Although the parties and courts in this cause appear to confuse "granting the writ," i.e., holding a hearing, and "granting relief," it is clear that the trial court granted both the writ and relief. The trial court held a full hearing and heard extensive arguments by both sides before signing an order granting "Defendant's Application for Writ of Habeas Corpus Seeking Release Because of Expiration of Limitation Period" and ordering that appellee be released from further restraint and the indictment dismissed.


This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. This file was derived from the text posted on the web site of the Texas Court of Criminal Appeals, by the automatic operation of conversion software, and may contain errors.

Baker's Legal Pages are a public service of Freelance Enterprises, Inc.

Casenotes Listing Table of Recent Opinions
Send your comments or suggestions to fei@bakers-legal-pages.com
© 2005 Lang Baker