No.

In the

Court of Criminal Appeals of Texas 

At Austin



No. 01-14-00962-CR

In the Court of Appeals for the 

First District of Texas 

At Houston 



THE STATE OF TEXAS

Appellant

V.

JIMMY EARL DRUMMOND

Appellee



STATE’S PETITION FOR DISCRETIONARY REVIEW



DEVON ANDERSON

District Attorney 

Harris County, Texas 

ALAN CURRY 

State Bar Number 05263700 

Assistant District Attorney 

Harris County, Texas 

JULIAN RAMIREZ

Assistant District Attorney 

Harris County, Texas 

LISA MCMINN

State Prosecuting Attorney 

1201 Franklin, Suite 600 

Houston, Texas 77002 

Tel.: 713/755-5826

FAX No.: 713/755-5809

curry_alan@dao.hctx.net 

Counsel for Appellant

PD-1238-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 9/21/2015 4:18:01 PM

Accepted 9/22/2015 2:16:41 PM

ABEL ACOSTA

CLERK
i

IDENTIFICATION OF THE PARTIES

A complete list of the names of all interested parties is provided below so that 

the members of this Honorable Court may at once determine whether they are 

disqualified to serve or should recuse themselves from participating in the decision of 

the case.

Complainant, victim, or aggrieved party:

David Scherz, Jr.

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Lisa McMinn  State Prosecuting Attorney on appeal

Alan Curry  Assistant District Attorney on appeal

Julian Ramirez  Assistant District Attorney at trial

1201 Franklin, Suite 600

Houston, Texas 77002

Appellee or criminal defendant:

Jimmy Earl Drummond

Counsel for Appellee:

Samuel Cammack  Counsel at trial and on appeal

1001 West Loop South, Suite 700

Houston, Texas 77027-9033
ii

Trial Judge:

Hon. Denise Collins  Presiding Judge
iii

TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES...........................................................................i

INDEX OF AUTHORITIES............................................................................................. iv

STATEMENT OF THE CASE .......................................................................................... 2

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE...................... 2

STATE’S GROUND FOR REVIEW ................................................................................ 3

The court of appeals erred in holding that the running of the statute of 

limitations was not tolled by the filing of the initial complaint against the 

appellee when the clear language of the controlling statute states that the 

filing of a complaint tolls the running of the statute of limitations (C.R. 

73; R.R. II-49).

PRAYER FOR RELIEF..................................................................................................... 14

CERTIFICATE OF COMPLIANCE .............................................................................. 15

CERTIFICATE OF SERVICE......................................................................................... 16
iv

INDEX OF AUTHORITIES

CASES

Arabzadegan v. State,

240 S.W.3d 44 (Tex. App.—

Austin 2007, pet. ref’d) ...................................................................................................... 9

Barnhill v. State,

657 S.W.2d 131 (Tex. Crim. App. 1983) ......................................................................... 9

Dickerson v. State,

571 S.W.2d 942 (Tex. Crim. App. 1978) ......................................................................... 7

Emerson v. State,

727 S.W.2d 267 (Tex. Crim. App. 1987) ......................................................................... 3

Ex parte Clear,

573 S.W.2d 224 (Tex. Crim. App. 1978) ......................................................................... 7

Ex parte Dobbs,

978 S.W.2d 959 (Tex. Crim. App. 1998) ......................................................................... 7

Ex parte Ward,

560 S.W.2d 660 (Tex. Crim. App. 1978) ..................................................................... 7, 8

Forte v. State,

707 S.W.2d 89 (Tex. Crim. App. 1986) ........................................................................... 9

Gallagher v. State,

690 S.W.2d 587 (Tex. Crim. App. 1985) ......................................................................... 3

Gentry v. State,

259 S.W.3d 272 (Tex. App.—

Waco 2008, pet. ref’d)........................................................................................................ 9

Green v. State,

872 S.W.2d 717 (Tex. Crim. App. 1994) ......................................................................... 9
v

Marbach v. State,

773 S.W.2d 411 (Tex. App.—

San Antonio 1989, no pet.) ............................................................................................... 7

Miffleton v. State,

777 S.W.2d 76 (Tex. Crim. App. 1989) ........................................................................... 9

Skero v. State,

866 S.W.2d 336 (Tex. App.—

Houston [14th Dist.] 1993, pet. ref’d) ............................................................................. 4

State v. Edwards,

808 S.W.2d 662 (Tex. App.—

Tyler 1991, no pet.)............................................................................................................ 6

State v. Hall,

794 S.W.2d 916 (Tex. App.—

Houston [1st Dist.] 1990), aff’d,

829 S.W.2d 184 (Tex. Crim. App. 1992) ......................................................................... 3

State v. Morris,

228 S.W.3d 246 (Tex. App.—

Austin 2007, no pet.).......................................................................................................... 9

STATUTES

TEX. CODE CRIM. PROC. ANN. art. 12.05 (West 2015).............................................passim

TEX. CODE CRIM. PROC. ANN. art. 15.05 (West 2015)...................................................... 6

TEX. CODE CRIM. PROC. ANN. art. 21.22 (West 2015)...................................................... 6

TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2015) ..................................................3, 10

TEX. CODE CRIM. PROC. ANN. arts. 12.02, 12.04 (West 2015)......................................... 4

TEX. GOV’T CODE ANN. § 24.007 (West 2015)................................................................ 10

TEX. GOV’T CODE ANN. § 24.387 (West 2015)................................................................ 10
vi

TEX. GOV’T CODE ANN. § 54.856 (West 2015)................................................................ 11

RULES

TEX. R. APP. P. 66.3(a)........................................................................................................... 3

TEX. R. APP. P. 66.3(d)........................................................................................................... 3

CONSTITUTIONAL PROVISIONS

TEX. CONST. art. V, § 12(b)................................................................................................... 9

TEX. CONST. art. V, § 8....................................................................................................3, 10
STATEMENT REGARDING ORAL ARGUMENT

In the event the State’s petition for discretionary review is granted by this 

Honorable Court, the State requests oral argument herein for the following reason:

The decision by the court of appeals reduces the significance of the filing of a 

complaint in Texas criminal law as one of the charging instruments that begins the 

initiation of adversarial judicial proceedings. This Court should resolve the conflict in 

Texas law that this decision has created. Oral argument will assist in identifying the 

ramifications of this conflict.
2

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

STATEMENT OF THE CASE

In cause number 1446229, the appellee was charged with the misdemeanor 

offense of official oppression (C.R. 5). The appellee filed a motion to quash the 

indictment and dismiss the prosecution, claiming that the offense was barred by 

limitations (C.R. 70-71). On November 10, 2014, the trial court granted the appellee’s 

motion to quash the indictment and dismiss the prosecution (C.R. 73; R.R. II-49). On 

November 18, 2014, the State timely filed a written notice of appeal (C.R. 83).



STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

In a published opinion, delivered August 20, 2015, the First Court of Appeals 

affirmed the judgment of the trial court. The State now timely files its petition for 

discretionary review in accordance with TEX. R. APP. P. 68.2(a).


3

STATE’S GROUND FOR REVIEW

The court of appeals erred in holding that the running of the statute of 

limitations was not tolled by the filing of the initial complaint against the 

appellee when the clear language of the controlling statute states that the filing 

of a complaint tolls the running of the statute of limitations (C.R. 73; R.R. II49).

REASONS FOR REVIEW

This holding by the court of appeals should be reviewed pursuant to TEX. R.

APP. P. 66.3(a) because the decision of the court of appeals conflicts with the decision 

of the Bonner v. State, 832 S.W.2d 134 (Tex. App.—Amarillo 1992, pet. ref’d). This 

holding should also be reviewed pursuant to TEX. R. APP. P. 66.3(d) because court of 

appeals has misconstrued TEX. CODE CRIM. PROC. ANN. art. 12.05 (West 2015).

On September 9, 2013, the appellee, then a Sergeant with the Harris County 

Constable’s Office, was charged by complaint with the offense of official oppression 

based upon events that occurred on September 10, 2011 (C.R. 6-7; R.R. III-State’s 

Exhibit # 1). This complaint was presented to a magistrate, who found probable 

cause for the criminal charge and for the appellee’s arrest, and the case was filed in the 

208th District Court (C.R. 6-7; R.R. III-State’s Exhibit # 1).1 The statute of 

 

1

 The offense of official oppression is a misdemeanor involving official misconduct, 

over which a district court has exclusive jurisdiction. Emerson v. State, 727 S.W.2d 267, 

268-69 (Tex. Crim. App. 1987) (citing Gallagher v. State, 690 S.W.2d 587 (Tex. Crim. 

App. 1985); TEX. CONST. art. V, § 8; TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 

2015). Cf. State v. Hall, 794 S.W.2d 916 (Tex. App.—Houston [1st Dist.] 1990), aff’d, 

829 S.W.2d 184 (Tex. Crim. App. 1992) (holding that statute of limitations was not 

tolled because charge filed in district court was not misdemeanor involving official 
4

limitations for the offense of official oppression occurring on September 10, 2011 

expired on September 12, 2013. See TEX. CODE CRIM. PROC. ANN. arts. 12.02, 12.04 

(West 2015).

On October 24, 2014, a grand jury returned an indictment against the appellee 

for the offense of official oppression based upon events that occurred on September 

10, 2011, and the indictment included the following tolling language, “It is further 

alleged that the Defendant was previously charged by a complaint and information 

and indictment with this offense from September 9, 2013 through October 24, 2014, 

during which period the statute of limitations for this offense was tolled” (C.R. 5; R.R. 

III-State’s Exhibit # 3).2 This indictment was filed in the 208th District Court (C.R. 

5; R.R. III-State’s Exhibit # 3).

The State contends that the complaint filed on September 9, 2013 was 

sufficient to toll the statute of limitations, and that the trial court erred in granting the 

appellee’s motion to quash, in which he claimed that the statute of limitations had 

expired, and that the court of appeals erred in upholding the trial court’s ruling in that 

regard. The decision of the court of appeals was contrary to the controlling statute, 

which provides:

 

misconduct and that, therefore, charge had not been filed in court of competent 

jurisdiction).

2

 If a charging instrument does not contain tolling language, as was the case with the 

first indictment filed in this case, the indictment can be amended or re-filed to include 

the appropriate tolling language. See Skero v. State, 866 S.W.2d 336, 338 (Tex. App.—

Houston [14th Dist.] 1993, pet. ref’d).
5

(b) The time during the pendency of an indictment, information, 

or complaint shall not be computed in the period of limitation.

(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.

TEX. CODE CRIM. PROC. ANN. art. 12.05 (West 2015) (emphasis added). The State 

contends that the filing of the complaint in this case was sufficient to toll the statute 

of limitations for the misdemeanor involving official misconduct.

In Bonner v. State, the Amarillo Court of Appeals was confronted with essentially 

the same question that confronts this Court in this case. In Bonner, on September 17, 

1986, a complaint was filed in the trial court charging the defendant with felony 

delivery of a controlled substance. The complaint alleged that the offense was 

committed on or about August 3, 1986. On August 1, 1991, well after the statute of 

limitations for the felony offense had run, a grand jury returned an indictment 

charging the defendant with the offense. As in this case, the indictment filed in Bonner 

contained a tolling paragraph, alleging that the felony complaint had been filed against 

the defendant charging him with the offense. Bonner v. State, 832 S.W.2d 134, 135 

(Tex. App.—Amarillo 1992, pet. ref’d).

In Bonner, as in this case, while the defendant acknowledged that the filing of an 

indictment or information was a sufficient commencement of a prosecution to 

prevent the running of a statute of limitations, he contended that the mere filing of a 
6

complaint was not sufficient to accomplish that result. In making that contention, as 

in this case, the defendant in Bonner relied upon the decision in State v. Edwards, 808 

S.W.2d 662 (Tex. App.—Tyler 1991, no pet.). See Bonner, 832 S.W.2d at 135.

In Edwards, the State had filed a complaint and information on December 14, 

1989, charging the defendant with the misdemeanor offense of theft by check alleged 

to have occurred on September 4, 1985. But the State claimed that the two-year 

limitation period had been tolled under Article 12.05 because a complaint meeting the 

requirements of TEX. CODE CRIM. PROC. ANN. art. 15.05 (West 2015) had been filed 

within nine months of the commission of the offense and an arrest warrant had

issued. In holding that the statute had not been tolled, the Edwards court noted that 

the requirements of Article 15.05 were different from those required under TEX.

CODE CRIM. PROC. ANN. art. 21.22 (West 2015) to support a misdemeanor 

information. Bonner, 832 S.W.2d at 135-36 (citing State v. Edwards, 808 S.W.2d 662 

(Tex. App.—Tyler 1991, no pet.)).

The Edwards court held that, under Article 21.22, both a complaint and 

information were required to confer jurisdiction upon the county court to try a 

misdemeanor case. En route to its holding, the court noted that Article 12.05 “serves 

only to stay the running of the limitation period during the pendency of the type of 

accusatory pleading appropriate to invoke the jurisdiction of a court of competent 

jurisdiction. A court of competent jurisdiction is one that has jurisdiction of the 

offense.” Bonner, 832 S.W.2d at 136 (citing State v. Edwards, 808 S.W.2d 662, 663 (Tex. 
7

App.—Tyler 1991, no pet.); Marbach v. State, 773 S.W.2d 411 (Tex. App.—San 

Antonio 1989, no pet.)). In Bonner, as in this case, the defendant claimed that an 

indictment was the only accusatory pleading appropriate to invoke the jurisdiction of 

a district court, and, applying the logic of the Edwards case, concluded that the mere 

filing of a complaint in the absence of the presentment of an indictment was not 

sufficient to toll the applicable statute of limitations. The court of appeals disagreed. 

Bonner, 832 S.W.2d at 136.

In Bonner, the court of appeals noted that, in Ex parte Ward, 560 S.W.2d 660 

(Tex. Crim. App. 1978), this Court had been confronted with the question of whether 

a complaint filed in a justice court would toll the running of the statute of limitations 

in a felony case. In Ex parte Ward, this Court had held that, while a justice court had 

authority to take a complaint and issue a warrant of arrest, a justice court did not have 

jurisdiction of the felony offense charged so as to come within the ambit of Article 

12.05. The court held that the statute of limitations was not tolled and that 

prosecution in the case was barred. Bonner, 832 S.W.2d at 136 (citing Ex parte Ward, 

560 S.W.2d 660, 662 (Tex. Crim. App. 1978)). See also Dickerson v. State, 571 S.W.2d 

942, 943 (Tex. Crim. App. 1978) (filing of complaint in justice court does not toll 

running of the period of limitations in felony case).3

 

3

 Cf. Ex parte Dobbs, 978 S.W.2d 959 (Tex. Crim. App. 1998) (municipal court, sitting 

as a magistrate, had sole jurisdiction over complaints charging defendant with 

offenses of aggravated sexual assault of a child and indecency with a child); Ex parte 

Clear, 573 S.W.2d 224, 225-26 (Tex. Crim. App. 1978) (justice court had sole 
8

However, this Court’s holding in Ex parte Ward did not control the holding of 

the court of appeals in Bonner v. State:

A careful reading of the Ward case demonstrates the emphasis placed by 

the Court upon the salient fact that the complaint was filed in the justice 

court which, of course, does not have jurisdiction of felony cases in this 

state. Implicit in that emphasis, and rather lengthy discussion of 

jurisdiction, is the conclusion if the complaint had been filed in a court 

of competent jurisdiction, i.e., the district court, the holding would have 

been different.

Bonner, 832 S.W.2d at 136 (citing Ex parte Ward, 560 S.W.2d 660, 662 (Tex. Crim. App. 

1978)). The State agrees and contends that the filing of a complaint, charging a 

defendant with a felony or with a misdemeanor involving official misconduct, would 

be sufficient to toll the statute of limitations if the complaint had been filed in a 

“court of competent jurisdiction.” The holding in Ex parte Ward clearly turned upon 

the fact that the charging instrument had been filed in a justice court, and not upon 

the fact that the charging instrument was a complaint.

The conclusion by the court in Bonner was reinforced by the language of Article 

12.05(b), in particular, that portion which reads that “the time during the pendency of 

an indictment, information, or complaint” (emphasis added), shall not be computed in 

the period of limitation.” The use of the disjunctive “or” preceding the reference to a 

complaint is indicative of the legislative instruction that the filing of such an 

instrument in a proper court would toll the statute. Bonner, 832 S.W.2d at 136-37. 

 

jurisdiction over complaint, charging defendant with felony offense of assault of a 

public servant).
9

The filing of a complaint in district court was sufficient to toll the statute of 

limitations for the felony offense in Bonner, and the filing of the complaint in this case 

was sufficient to toll the statute of limitations for the misdemeanor involving official 

misconduct alleged to have been committed by the appellee. In this case, the court of 

appeals disagreed with the holding and the reasoning of the court of appeals in Bonner, 

which had been previously reviewed by this Court. The holdings in the two published 

decisions now stand in direct contradiction with one another, and this Court should 

resolve that conflict.

In Texas, the filing of a complaint often initiates a prosecution in felony cases 

and in misdemeanor cases involving official misconduct. This Court has repeatedly 

held that, as is the case with the filing of an indictment or information, the filing of a 

felony complaint triggers the commencement of adversary judicial proceedings against 

a defendant. Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994) (citing Barnhill 

v. State, 657 S.W.2d 131, 132 (Tex. Crim. App. 1983); Miffleton v. State, 777 S.W.2d 76, 

78 (Tex. Crim. App. 1989); Forte v. State, 707 S.W.2d 89, 92 (Tex. Crim. App. 1986)). 

See also Gentry v. State, 259 S.W.3d 272, 277 (Tex. App.—Waco 2008, pet. ref’d); 

Arabzadegan v. State, 240 S.W.3d 44, 48 (Tex. App.—Austin 2007, pet. ref’d); State v. 

Morris, 228 S.W.3d 246, 249 (Tex. App.—Austin 2007, no pet.).

The jurisdiction of district courts includes the filing of felony complainants and 

complaints charging misdemeanors involving official misconduct. It is true that TEX.

CONST. art. V, § 12(b) provides, in part, “The presentment of an indictment or 
10

information to a court invests the court with jurisdiction of the cause.” But that 

provision is not the primary provision that gives jurisdiction to a district court, and 

that provision does not state that a district court should thereby ignore a felony 

complaint or a complaint charging a defendant with a misdemeanor involving official 

misconduct. District courts in fact gain their jurisdiction from TEX. CONST. art. V, § 

8, which provides,

District Court jurisdiction consists of exclusive, appellate, and original 

jurisdiction of all actions, proceedings, and remedies, except in cases 

where exclusive, appellate, or original jurisdiction may be conferred by 

this Constitution or other law on some other court, tribunal, or 

administrative body. District Court judges shall have the power to issue 

writs necessary to enforce their jurisdiction.

(emphasis added). See also TEX. GOV’T CODE ANN. § 24.007 (West 2015); TEX.

GOV’T CODE ANN. § 24.387 (West 2015) (specifically referencing 208th District 

Court). Furthermore, TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2015) provides, 

“District courts and criminal district courts shall have original jurisdiction in criminal 

cases of the grade of felony, of all misdemeanors involving official misconduct, 

and of misdemeanor cases transferred to the district court under Article 4.17 of this 

code.” (emphasis added). A district court, like the 208th District Court, certainly has 

jurisdiction over felony complaints and complaints that charge a defendant with a 

misdemeanor involving official misconduct. Such a district court would be a “court 

of competent jurisdiction” for such a complaint. The decision of the court of appeals 
11

does not mention any of these statutes affording a district court in Texas with 

jurisdiction over a case.

The complaint in this case was clearly filed in the papers of the 208th District 

Court (C.R. 6). It is true that the complaint was initially presented to a magistrate or 

hearing officer, who found probable cause that an offense had been committed and 

that the appellee was to be arrested based upon those charges. But the complaint was 

clearly returnable to the 208th District Court, and it initiated the filing of several 

documents in the 208th District Court before an indictment was ever filed.

In Harris County criminal courts, magistrates or “criminal law hearing 

officers,” work for the 22 judges of the district courts trying criminal cases and the 15 

judges of the county criminal courts at law. Those magistrates or “criminal law 

hearing officers” are provided for in Chapter 54, Subchapter L of the Texas 

Government Code. TEX. GOV’T CODE ANN. § 54.856 (West 2015) provides:

(a) A criminal law hearing officer appointed under this subchapter 

has limited concurrent jurisdiction over criminal cases filed in the district 

courts and county criminal courts at law of the county and concurrent 

jurisdiction over criminal cases filed in the justice courts of the county. 

In criminal cases filed in the district courts and county criminal courts at 

law, the jurisdiction of the criminal law hearing officer is limited to:

(1) determining probable cause for further detention of any 

person detained on a criminal complaint, information, or 

indictment filed in the district courts or county criminal courts at 

law;

(2) committing the defendant to jail, discharging the defendant 

from custody, or admitting the defendant to bail, as the law and 

facts of the case require;
12

(3) issuing search warrants and arrest warrants as provided by law 

for magistrates; and

(4) enforcing judgments and orders of the county criminal courts 

at law in criminal cases.

(b) This section does not limit or impair the jurisdiction of 

the court in which the complaint, information, or indictment is 

filed to review or alter the decision of the criminal law hearing 

officer.

(c) In a felony or misdemeanor case punishable by incarceration in 

the county jail, a criminal law hearing officer may not dismiss the case, 

enter a judgment of acquittal or guilt, or pronounce sentence.

(emphasis added). This statute, as is the case with Article 12.05, clearly contemplates 

that a complaint is filed with an actual court. And this statute does not impair the 

jurisdiction of the court and did not impair the jurisdiction of the 208th District Court 

in this case.

Pursuant to Article 12.05(b), a complaint filed in a district court should toll the 

statute of limitations if the complaint alleges a misdemeanor offense involving official 

misconduct, an offense over which a district court has jurisdiction. The 208th District 

Court was a court of competent jurisdiction for the complaint charging the appellee 

with having committed the offense of official oppression—a misdemeanor involving 

official misconduct. Consequently, the statute of limitations for the misdemeanor 

offense was properly tolled, and the trial court erred in granting the appellee’s motion 

to quash the indictment. The court of appeals then erred in holding that the running 

of the statute of limitations was not tolled by the filing of the initial complaint against 
13

the appellee when the clear language of the controlling statute states that the filing of 

a complaint tolls the running of the statute of limitations. The State’s ground for 

review should be sustained.


14

PRAYER FOR RELIEF

WHEREFORE, the State prays that this Court will grant this petition for 

discretionary review, and that this Court will reverse the decision of the court of 

appeals.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Alan Curry

ALAN CURRY

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

TBC No. 05263700

curry_alan@dao.hctx.net
15

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document has 

a word count of 2,886 words, based upon the representation provided by the word 

processing program that was used to create the document.

/s/ Alan Curry

ALAN CURRY

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

TBC No. 05263700

curry_alan@dao.hctx.net
16

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been mailed to the 

following addresses:

Mr. Samuel R. Cammack, III Ms. Lisa McMinn

Attorney at Law State’s Prosecuting Attorney

1001 West Loop South, Suite 700 P.O. Box 12405

Houston, Texas 77027-9033 Austin, Texas 78711

/s/ Alan Curry

ALAN CURRY

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

TBC No. 05263700

curry_alan@dao.hctx.net

Date: September 21, 2015
17

APPENDIX
Opinion issued August 20, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00962-CR

———————————

THE STATE OF TEXAS, Appellant

V.

JIMMY EARL DRUMMOND, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Case No. 1446229

O P I N I O N

Appellant, the State of Texas, challenges the criminal district court’s order 

granting the motion of appellee, Jimmy Earl Drummond, to quash and dismiss an 

indictment accusing him of the Class A misdemeanor offense of official 
2

oppression.1 In three issues, the State contends that the criminal district court erred 

in granting appellee’s motion, holding that the pertinent statute of limitations2 “was 

not tolled by the filing of [its] initial complaint” against appellee, and holding that 

its initial complaint “was not filed in a court of competent jurisdiction.”

We affirm.

Background

On September 9, 2013, the State presented to a Harris County magistrate a 

“COMPLAINT,” accusing appellee, then a sergeant with the Harris County 

Constable’s Office (“HCCO”), Precinct 4, of committing the Class A misdemeanor 

offense of official oppression on or about September 10, 2011. The complaint 

contains a probable cause affidavit, which was sworn to by a peace officer 

employed by the Harris County District Attorney’s Office and subscribed before an 

assistant district attorney. The magistrate found probable cause for the arrest of 

appellee, and the State filed the complaint in cause number 1400758 in the 

criminal district court on September 9, 2013. 

On December 18, 2013, a Harris County Grand Jury returned a true bill of 

indictment, specifically alleging that appellee, 

on or about September 10, 2011, . . . while a public servant acting 

under color of his office and employment, namely a Sergeant with the 

 1 See TEX. PENAL CODE ANN. § 39.03(a)(1) (Vernon Supp. 2014). With exceptions 

not applicable here, an offense is a Class A misdemeanor. Id. § 39.03(d). 

2 See TEX. CODE CRIM. PROC. ANN. art. 12.02 (Vernon 2015). 
3

[HCCO], intentionally subject[ed] . . . the Complainant[] to 

mistreatment that [appellee] knew was unlawful, to wit: by kicking 

the Complainant [and] . . . by dropping his knee forcefully on the 

Complainant’s upper back and neck area while the Complainant was 

handcuffed and face-down on the ground [and] . . . by grabbing the 

Complainant’s head and pulling it back while the Complainant was 

handcuffed and face-down on the ground.

Appellee challenged this indictment in his “Motion to Quash Indictment and 

Dismiss Prosecution,” asserting that the indictment was improperly returned after 

the expiration of the two-year statute of limitations governing the offense.3

 

On October 24, 2014, before the criminal district court ruled on appellee’s 

motion to quash and dismiss, another Harris County Grand Jury returned a second 

true bill of indictment in trial court cause number 1446229, the instant cause. This 

second indictment contains the above quoted language from the first indictment. 

And it “further allege[s]” that appellee “was previously charged by a complaint 

and information [sic] and indictment with this offense from September 9, 2013 

through October 24, 2014, during which period the statute of limitations for this 

offense was tolled.” Appellee challenged the October 24, 2014 indictment in a 

subsequent “Motion to Quash Indictment and Dismiss Prosecution,” asserting that 

it was returned after the expiration of the two-year statute of limitations governing 

the offense. 

 3 See id.
4

At a hearing on appellee’s motions to quash and dismiss the indictments, the 

State conceded that appellee’s motion to quash and dismiss the December 18, 2013 

indictment was “meritorious” because it was returned outside of the two-year 

limitations period and “did not on its face contain [a] tolling paragraph.” The trial 

court granted appellee’s first motion and dismissed the December 18, 2013 

indictment, noting that the State had “[a]greed as to [the] tolling paragraph.” 

In regard to appellee’s motion to quash and dismiss the October 24, 2014 

indictment in the instant cause, the State asserted that the complaint that it had 

initially filed in the criminal district court on September 9, 2013 tolled the twoyear limitations period. Appellee, in contrast, asserted that in the prosecution of a 

Class A misdemeanor offense, a complaint, standing alone without the timely 

filing of an information or return of an indictment prior to the expiration of the 

two-year limitations period, does not toll the limitations period. The trial court 

granted appellee’s motion and dismissed the October 24, 2014 indictment.

Standard of Review

We review a trial court’s ruling on a motion to quash de novo. Smith v. 

State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010); Tata v. State, 446 S.W.3d 

456, 462 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); see also State v. Moff, 

154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (“When the resolution of a question 

of law does not turn on an evaluation of the credibility and demeanor of a witness, 
5

then the trial court is not in a better position to make the determination, so 

appellate courts should conduct a de novo review of the issue.”). We construe 

limitations provisions “strictly against the State and liberally in favor of the 

defendant.” Gallardo v. State, 768 S.W.2d 875, 880 (Tex. App.—San Antonio 

1989, pet. ref’d).

Limitations

In its three issues, the State argues that the trial court erred in granting 

appellee’s motion to quash and dismiss the October 24, 2014 indictment in the 

instant cause because its “initial complaint,” filed in the criminal district court on 

September 9, 2013, tolled the two-year limitations period. See TEX. CODE CRIM.

PROC. ANN. art. 12.05(b) (Vernon 2015).

Appellee argues that the trial court properly granted his motion to quash and 

dismiss the October 24, 2014 indictment “because both the original indictment and 

subsequent indictment were presented to the [criminal district] court after the 

limitations period had expired.” He specifically argues that the trial court properly 

held that “the filing of the initial complaint did not toll the running of the statute of 

limitations because the mere filing of the complaint without the proper accusatory 

pleading, i.e., an information or indictment, does not toll the statute of 

limitations . . . for a Class A misdemeanor.” See TEX. CODE CRIM. PROC. ANN. art. 

12.02(a) (Vernon 2015). 
6

A statute of limitations protects one accused of an offense “from having to 

defend [himself] against charges when the basic facts may have become obscured 

by the passage of time and to minimize the danger of official punishment because 

of acts in the far-distant past.” Hernandez v. State, 127 S.W.3d 768, 772 (Tex. 

Crim. App. 2004) (quoting Toussie v. United States, 397 U.S. 112, 114–15, 90 S. 

Ct. 858, 860 (1970), superseded by statute on other grounds as recognized in

United States v. Tavarez-Levario, 788 F.3d 433, 437 (5th Cir. 2015)). A charging 

instrument must reflect on its face that a prosecution thereunder is not barred by 

the applicable statute of limitations. Tita v. State, 267 S.W.3d 33, 37 (Tex. Crim. 

App. 2008); see also TEX. CODE CRIM. PROC. ANN. art. 21.02(6) (Vernon 2009). If 

a comparison of the date on which a charging instrument is presented indicates that 

it was not presented within the applicable period of limitation, then, on a 

defendant’s motion, it “must be dismissed.” Tita, 267 S.W.3d at 37; see also TEX.

CODE CRIM. PROC. ANN. art. 27.08(2) (Vernon 2006).

In 2009, the Texas Legislature amended article 12.02, which now, in regard 

to limitations for misdemeanor offenses, expressly provides:

(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.

(b) A complaint or information for any Class C misdemeanor may 

be presented within two years from the date of the commission 

of the offense, and not afterward.
7

TEX. CODE CRIM. PROC. ANN. art. 12.02 (emphasis added); see also Act of May 24, 

1973, 63rd Leg., R.S., ch. 399, § 2(b), 1973 Tex. Gen. Laws 883, 975, amended by

Act of May 25, 2009, 81st Leg., R.S., ch. 472, § (1)–(3), 2009 Tex. Gen. Laws 

1077, 1077. In amending article 12.02, the legislature rewrote the previous single 

paragraphed article4 and created two new subsections: (a), which concerns the 

requirement of a timely presentation of either “an indictment or information” for 

the prosecution of Class A and B misdemeanor offenses, and (b), which concerns 

the requirement of a timely presentation of either a “complaint or information” for 

the prosecution of a Class C misdemeanor offenses. See Act of May 24, 1973, 

63rd Leg., R.S., ch. 399, § 2(b), 1973 Tex. Gen. Laws 883, 975 (amended 2009).

Here, the State, based on events occurring on September 10, 2011, attempted 

to accuse appellee of committing the offense of official oppression, a Class A 

misdemeanor. See TEX. PENAL CODE ANN. § 39.03(a)(1), (d) (Vernon Supp. 

2014). Thus, pursuant to the express language of article 12.02(a), the State, to 

prosecute appellee for the offense, was required to present “an indictment or 

information” against him by September 10, 2013, “and not afterward.” TEX. CODE 

CRIM. PROC. ANN. art. 12.02(a) (emphasis added). 

 4 “An indictment or information for any misdemeanor may be presented within two 

years from the date of the commission of the offense, and not afterward.” Act of 

May 24, 1973, 63rd Leg., R.S., ch. 399, § 2(b), 1973 Tex. Gen. Laws 883, 975, 

amended by Act of May 25, 2009, 81st Leg., R.S., ch. 472, § (1)–(3), 2009 Tex. 

Gen. Laws 1077, 1077. 
8

Although, for limitation purposes, a timely presented “complaint” will 

suffice under article 12.02(b) for the prosecution of a Class C misdemeanor, only a 

timely presented “indictment or information” will suffice for the prosecution of 

Class A and B misdemeanors under article 12.02(a). It is undisputed that the State 

did not, by September 10, 2013, present in the criminal district court below an 

“indictment or information” against appellee for the Class A misdemeanor offense 

of official oppression. Indeed, the State did not present the indictment at issue 

until October 24, 2014. 

The code of criminal procedure does further provide that the time “during 

the pendency of an indictment, information, or complaint shall not be computed in 

the period of limitation.” TEX. CODE CRIM. PROC. ANN. art. 12.05(b). And it 

specifically defines “during the pendency” as meaning

Th[e] 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). 

The State argues that its filing of its September 9, 2013 complaint “was 

sufficient to toll the statute of limitations” until the presentment of the October 24, 

2014 indictment because article 12.05 expressly includes the word “complaint” and 

it employs the disjunctive, “or.” However, a plain reading of article 12.05 reveals 

that nothing within it relieved the State of its obligation under article 12.02(a) to 
9

present by September 10, 2013 in the criminal district court the appropriate 

charging instrument for the Class A misdemeanor offense of official oppression, 

i.e., either “an indictment or information.”

Indeed, the legislature enacted article 12.05 because it “sought to give the 

State more freedom to prosecute defendants when the original [charging 

instrument] contains a defect.” Hernandez, 127 S.W.3d at 771. “[M]any 

indictments, informations, and complaints [were] being held invalid because of 

procedural errors and defects in form that ha[d] nothing to do with the guilt or 

innocence of the persons charged, and persons guilty of capital, as well as other 

crimes, [we]re going unpunished. . . .” Id. (quoting Vasquez v. State, 557 S.W.2d 

779, 784 n.7 (Tex. Crim. App. 1977), overruled on other grounds by Proctor v. 

State, 967 S.W.2d 840 (Tex. Crim. App. 1998)). Simply put, “[t]he provisions 

[a]rticle 12.05(b) and (c) . . . were designed to overcome the rule that invalid 

indictments will not toll the running of the statutes of limitation in the absence of a 

statute so providing.” Vasquez, 557 S.W.2d at 784. The court of criminal appeals 

has held that to fulfill the legislature’s purpose in enacting article 12.05(b), “a prior 

indictment tolls the statute of limitations . . . for a subsequent indictment when 

both indictments allege the same conduct, same act, or same transaction.” 

Hernandez, 127 S.W.3d at 774; see, e.g., Brice v. State, No. 14-13-00935-CR, 

2015 WL 545557, at *2 (Tex. App.—Houston [14th Dist.] Feb. 10, 2015, no pet.) 
10

(mem. op., not designated for publication). Thus, article 12.05, presuming the 

existence of an appropriate charging instrument filed within the limitations period, 

merely grants the State time to address procedural errors and defects in the 

instrument that might not be raised before limitations expires. 

Had the State timely presented a defective indictment or information against 

appellee in the criminal district court for the prosecution of the Class A 

misdemeanor offense of official oppression, the time “during the pendency” of the 

defective indictment or information, i.e., the time from the date of its filing to the 

date the defect was determined, would “not be computed in the period of 

limitation.” See TEX. CODE CRIM. PROC. ANN. art. 12.05(b), (c). Likewise, had the 

State timely presented in an appropriate court a defective complaint for the 

prosecution of a Class C misdemeanor offense, the time “during the pendency” of 

the defective complaint, i.e., the time from the date of its filing to the date the 

defect is determined, would “not be computed in the period of limitation.” See id. 

But, here, the State was attempting to charge appellee with a Class A misdemeanor 

offense, not a Class C misdemeanor offense, and the State’s initial complaint filed 

on September 9, 2013 was, by its own admission, not an indictment or information. 

A “complaint” serves as the charging instrument in a prosecution conducted 

in a municipal or justice court. TEX. CODE CRIM. PROC. ANN. arts. 45.001, .018 

(Vernon 2006); see also State v. Boseman, 830 S.W.2d 588, 590 n.3 (Tex. Crim. 
11

App. 1992) (“[M]unicipal courts are relatively unique, in that a prosecution in a 

municipal court is sufficient to support a conviction, on a complaint alone, without 

an information being filed.”). A “complaint” may also serve as a basis for a 

probable cause finding for an arrest warrant or “serve as a basis for the issuance of 

an information or commencement of the indictment process.” Boseman, 830 

S.W.2d at 590 n.3; Gordon v. State, 801 S.W.2d 899, 916 (Tex. Crim. App. 1990) 

(noting distinction between complaint used to support warrant and complaint used 

as charging instrument). 

Although an indictment or information charging a defendant with the 

commission of a Class A or B misdemeanor must be supported by an underlying 

complaint, it is the “presentment of an indictment or information to a court [that] 

invests the court with jurisdiction of the cause.” TEX. CONST. art. V, § 12(b); see

TEX. CODE CRIM. PROC. ANN. art. 21.22 (Vernon 2009). A trial court that “finds 

fault with an information or indictment does not ‘dismiss’ the complaint on which 

the indictment or information was based, but sets aside the information or 

indictment.” Boseman, 830 S.W.2d at 590 n.3. And, again, article 12.02(a), in 

regard to Class A and B misdemeanor offenses, specifically requires that an 

“indictment or information,” and not a complaint, be presented within two years 

from the date of the commission of the offense. 
12

The case law concerning article 12.05 predates the legislature’s 2009 rewrite

of article 12.02 and is limited. Nevertheless, courts have previously held that a 

Class B misdemeanor complaint standing alone, without the timely presentation of 

an indictment or information within the limitations period, “does not trigger article 

12.05(b).” Marbach v. State, 773 S.W.2d 411, 412 (Tex. App.—San Antonio 

1989, no pet.); see State v. Edwards, 808 S.W.2d 662, 663 (Tex. App.—Tyler 

1991, no pet.).

In Edwards, the State filed, within the limitations period, an affidavit in 

which the affiant accused the defendant of the Class B misdemeanor offense of 

theft. 808 S.W.2d at 663. After the limitations period had expired, the State filed a 

complaint and an information, formally accusing the defendant of the offense. Id. 

The State argued that the filing of its affidavit tolled the limitations period because 

it met the requirements of a “complaint.” Id. (citing TEX. CODE CRIM. PROC. ANN.

arts. 12.05, 15.05). The court explained that an affidavit made in support of an 

arrest warrant significantly differs from that required to support an information 

because an arrest warrant “may be procurable upon evidence insufficient or 

incompetent to support an information necessary to bring the accused to trial.” Id. 

Thus, the court held that article 12.05 serves “only to stay the running of the 

limitation period during the pendency of the type of accusatory pleading 

appropriate to invoke the jurisdiction of a court of competent jurisdiction,” which 
13

is one that has jurisdiction of the offense. Id. It noted that because the State was 

attempting to charge the defendant with a Class B misdemeanor in a county court, 

“both a complaint and information [were] necessary to confer jurisdiction.” Id. 

And a “filed misdemeanor complaint without a filed misdemeanor information 

[did] not suffice to toll the running of limitations under article 12.05.” Id.

Acknowledging Edwards, the State nevertheless argues that “the filing of a 

complaint, charging a defendant with a felony or with a misdemeanor involving 

official misconduct, would be sufficient to toll the statute of limitations if the 

complaint had been filed in a ‘court of competent jurisdiction.’” In support of this 

argument, the State relies on Bonner v. State, 832 S.W.2d 134 (Tex. App.—

Amarillo 1992, pet. ref’d). In Bonner, although the State filed, in the district court 

and within the limitations period, a complaint charging the defendant with the 

felony offense of delivery of a controlled substance, an indictment was not 

returned until after the limitations period had expired. Id. at 135. The defendant 

argued that the filing of the complaint, standing alone, was insufficient to toll the 

running of the statute of limitations. Id. 

The Amarillo Court in Bonner noted that in Ex parte Ward, the Texas Court 

of Criminal Appeals held that a complaint filed in a justice court did not toll the 

statute of limitations for a felony offense because the justice court, although it had 

authority to take a complaint and issue an arrest warrant, “did not have jurisdiction 
14

of the felony offense charged . . . so as to come within the ambit of article 12.05.” 

Id. (quoting Ward, 560 S.W.2d 660, 662 (Tex. Crim. App. 1978)). The Amarillo 

Court reasoned, without explanation, that “[i]mplicit in” the holding in Ward was a 

“conclusion that if the complaint had been filed in a court of competent 

jurisdiction, i.e., the district court, the holding would have been different.” Id. 

And it held that the filing of the complaint in the district court, which was the 

“court of competent jurisdiction” to try the felony offense at issue, “was sufficient 

to invoke the jurisdiction of that court and to toll the limitation period.” Id. at 137. 

It further concluded, again without explanation, that Edwards was distinguishable 

in that it “dealt with the different requisites in a misdemeanor case,” which were 

not applicable to the felony case before it. Id.

As noted above, the time “during the pendency of an indictment, 

information, or complaint shall not be computed in the period of limitation.” TEX.

CODE CRIM. PROC. ANN. art. 12.05(b). “[D]uring the pendency” means the “period 

of time beginning with the day the indictment, information, or complaint is filed in 

a court of competent jurisdiction . . . .” Id. art. 12.05(c). And the Texas Court of 

Criminal Appeals has held that “for purposes of Article 12.05, 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). Again, however, nothing in article 12.05 

relieves the State of its obligation under article 12.02(a) to first timely present an 
15

appropriate charging instrument for Class A and B misdemeanor offenses, i.e., 

either “an indictment or information.”

Moreover, the court of criminal appeals and this Court have further 

explained that a “court of competent jurisdiction” means a “court that has 

jurisdiction of the offense,” and the elements essential to that jurisdiction are: (1) 

authority over the person, (2) authority over the subject matter, and (3) power to 

enter a judgment. See Ward, 560 S.W.2d at 661–62; Hall, 794 S.W.2d at 919. 

Courts may lack jurisdiction for different reasons. For instance, in Ward, the 

justice court in which the complaint was filed lacked jurisdiction over the felony 

offense presented, or the “subject matter.” 560 S.W.2d at 662; Hall, 794 S.W.2d at 

919 (noting “subject matter” refers to offense). 

Here, the criminal district court, in regard to the Class A misdemeanor 

offense of official oppression, lacked jurisdiction to enter a judgment on the 

instrument upon which the State relied to toll limitations, i.e., a complaint. See

Hall, 794 S.W.2d at 919 (requiring power to enter judgment); see also TEX.

CONST. art. V, § 12(b) (providing “presentment of an indictment or information to 

a court invests the court with jurisdiction of the cause” (emphasis added)). Thus, 

the State’s September 9, 2013 complaint, standing alone without a timely filed 

information or indictment, did not toll the statute of limitations. See TEX. CONST.
16

art. V, § 12(b); TEX. CODE CRIM. PROC. ANN. 12.02(a); Hall, 829 S.W.2d at 187; 

Ward, 560 S.W.2d at 661–62; Hall, 794 S.W.2d at 919.

Again, article 12.02(a), as now rewritten in 2009 by the Texas Legislature, 

expressly states that 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.” TEX. CODE CRIM. PROC. ANN. art. 12.02(a)

(emphasis added). Because the State did not present in the criminal district court 

an indictment or information against appellee for the Class A misdemeanor offense 

of official oppression within two years from the date of the commission of the 

offense, i.e., by September 10, 2013, it could not do so afterward. Id. 

Accordingly, we hold that the criminal district court did not err in granting 

appellee’s motion to quash and dismiss the October 24, 2014 indictment.

We overrule the State’s three issues.

Conclusion

We affirm the order of the criminal district court.

Terry Jennings

Justice 

Panel consists of Justices Jennings, Bland, and Brown. 

Publish. TEX. R. APP. P. 47.2(b).