Affirm and Opinion File d February 3, 2023 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00221-CR EX PARTE DENNY C MACKEY, Appellant On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 19-00324-422-F MEMORANDUM OPINION Before Justices Molberg, Partida-Kipness, and Carlyle Opinion by Justice Partida-Kipness Appellant Denny C. Mackey brings this appeal to challenge the trial court’s denial of his application for writ of hab eas corpus and motion to quash. Mackey was indicted for aggregate theft of ov er $100,000 but le ss than $200,000. See T EX

. P ENAL C ODE § 31.09. Mackey alleges the statute of limitations prevents the State from proceeding with its re-indictment of his cas e and his application for writ of habeas corpus should have been granted. We affirm.
BACKGROUND Mackey was arrested for abuse of offici al capacity related to allegations he stole money from the Crandall Volunteer Fi re Department in 2013 and was later–2– indicted in 2017 for theft of over $100,0 00 but less than $200,000 from the Crandall Volunteer Fire Department. See id . § 31.03(e)(6). According to the probable cause statement, members of the Crandall Volunt eer Fire Department suspected Mackey, who was the secretary/treasurer, obtaine d two loans from American National Bank on behalf of the Crandall Volunteer Fire Department. No one in the chain of command had authorized those loans and there was evidence Mackey used funds from those loans as well as other Crandall Volunteer Fire Department funds for his personal benefit. In October 2019, the State filed a motion to amend the indictment and change the offense from theft to aggregate theft under the same facts and circumstances. The trial court granted the State’s motion to amend. In November 2019, the State reindicted the case to the present indict ment for aggregate theft between $100,000 and $200,000 from the Crandall Volunteer Fire Department. The re-indictment included a paragraph with tolling language. Mackey filed a motion to quash the indictment and following a hearing on Mackey’s motion, the State filed a motion to amend the indictment to make adjustments recomme nded by the trial court: change the heading to reflect the proper penal code section and clean up the tolling language paragraph. The trial court granted the motion to ame nd and denied Mackey’s motion to quash. Mackey filed an application for a writ of habeas corpus and motion to quash, and in March 2022, filed an amended application for a writ of habeas corpus and motion to quash. In his amended motion, Ma ckey alleges the indictment:–3– 1. was amended over his objecti on and charged him with an additional or different offense or prejudiced [his] substantial rights in violation of Article 28.10(c) of the Texas Code of Criminal Procedure; 2. was not an indictment brought before a grand jury and violated article 1.05 of the code of criminal procedure, the Texas Constitution and the Unite d States Constitution; 3. failed to give Mackey sufficient notice of the nature and cause of the accusation against him as requi red by the code of criminal procedure, the Texas Constitution, and the United States Constitution; 4. was untimely and violated the st atute of limitations and failed to allege the prope r tolling language; 5. denied Mackey his right to a sp eedy trial pursuant to the code of criminal procedure, the Texas C onstitution, and the United States Constitution; and 6. violated Mackey’s Due Proce ss Clause of the United States Constitution. After a hearing, the trial court denied Mack ey’s application for writ of habeas corpus and motion to quash. The trial court issued findings of fact and conclusions of law stating in regards to Mackey’s issue about the tolling language and statute of limitations: 31. A prior indictment tolls the statute of limitations under Article 12.05(b) for subsequent indictments so long as both indictments allege ‘the same c onduct, same act, or same transaction[;]’ Hernandez [ v. State ], 127 S.W.3d [768], 772 [(Tex. Crim. App. 2004)]; 32. Defendant received actual notice of the State’s accusations, and was able to adequately prepare a defense;–4– 33. The Indictment from cause 16-00261-422-F tolls the statute of limitations in this cause because it alleges the same conduct, act, or transaction; 34. Therefore, the Amended Indict ment of January 8, 2021 is not untimely and does not violate the statute of limitations. This appeal followed.
JURISDICTION Mackey’s issue alleges the trial court erred by denying his application for writ of habeas corpus and motion to quash and finding the statute of limitations tolled with the initial indictment. However, the St ate challenges this Court’s jurisdiction to consider Mackey’s appeal. It argues Mackey is essentially app ealing the denial of his motion to quash the indictment whic h is an interlocutory appeal and not cognizable as a pre-trial appeal. I. Applicable Law A pre-trial writ of habeas cor pus is an extraordinary remedy. Ex parte Ingram , 533 S.W.3d 887, 891 (Tex. Crim . App. 2017). A defendant may use a pre-trial writ of habeas corpus in very limited circumst ances: (1) to challenge the State’s power to restrain him at all; (2) to challenge the manner of his pretrial restraint; and (3) to raise an issue that, if meritorious, would bar prosecution or conviction. Ex parte Smith , 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (per curi am). Habeas relief is not available if the defendant has an adequate remedy by post-conviction appeal. Ex parte Weise , 55 S.W.3d 617, 619 (Tex. Crim. App. 2001).–5– Generally, pre-trial habeas relief is not appropriate to test the sufficiency of the indictment. Ex parte Tamez , 38 S.W.3d 159, 160–61 (Tex. Crim. App. 2001). An exception applies when prosecution of the offense is barred by the statute of limitations because “the defect is incurable and irreparable.” Ex parte Smith , 178 S.W.3d at 802. If the pleading, on its face , shows that the offense is barred by limitations, then the indictment is so fundame ntally defective that the trial court does not have jurisdiction and habeas corpus relief should be granted. Ex parte Lovings , 480 S.W.3d 106, 110 (Tex. App.—Houston [ 14th Dist.] 2015, no pet.). Because Mackey asserts the State’s indictment is ba rred by the statute of limitations, we have jurisdiction to review the indict ment by which he is charged. Ex parte Tamez , 4 S.W.3d 854, 856 (Tex. App.—H ouston [1st Dist.] 1999), aff’d , 38 S.W.3d 159 (Tex. Crim. App. 2001). We review th is question of law de novo. See Ex parte de la Cruz , 466 S.W.3d 855, 866 (Tex. Crim. App. 2015). II. Analysis As an initial matter, we have no jurisd iction to consider the portion of this appeal of the motion to quash because it is interlocutory in na ture and the law has not authorized such an interlocutory appeal. See Ahmad v. State , 158 S.W.3d 525, 526–27 (Tex. App.—Ft. Worth 2004, pet. ref’d). We dism iss that portion of the appeal for want of jurisdiction. We have jurisdiction over interlocutory appeals from the denial of pretrial habeas. See Ward v. State , ––S.W.3d––, ––, No. AP-77,096, 2020 WL 3265251, at–6– *1 (Tex. Crim. App. June 17, 2020). Pretrial habeas is usua lly unavailable to test the sufficiency of a charging instrument. Ex parte Edwards , ––S.W.3d––, ––, No. PD1092-20, 2022 WL 1421507, at *1 (Tex. Crim . App. May 4, 2022). A challenge to limitations is a challenge to the substa nce and sufficiency of the indictment. See id

. at *2. However, an indicted person may ra ise a limitations cha llenge when the face of the indictment “shows the pros ecution is barred by limitations.” Ex parte Doster , 303 S.W.3d 720, 724 (Tex . Crim. App. 2010). Mackey argues the re-indictment charge d him with a different offense than that original indictment issued in 2017, therefore the re-indictment falls outside of the statute of limitations. On the face of th e re-indictment, the State included a tolling paragraph referencing the 2017 indictment for the 2013 offense that tolls the statute of limitations. The statute of limita tions for theft is five years. See T EX

. C ODE C RIM

. P ROC . art. 12.01(4)(A). “The time duri ng the pendency of an indictment, information, or complaint shall not be computed in the period of limitations.” Id . art. 12.05(b); see Hernandez v. State , 127 S.W.3d 768, 772 (Tex. Crim. App. 2004). The State’s re-indictment charged Mackey with the sa me set of conduct, acts, or transactions that Mackey was initially indicted for back in 2017 and included a sufficient tolling paragraph. See Ex parte Doster , 303 S.W.3d at 724. Therefore, we hold the prior indictment tolled the stat ute of limitations and on its face, the indictment does not show it is ba rred by the statute of limitations. See Hernandez , 127 S.W.3d at 772; Ex parte Edwards , 2022 WL 1421507, at *4; cf. Tamez , 38–7– S.W.3d at 161. The trial court did not err by denying the habeas petition. We overrule Mackey’s issue.
CONCLUSION Under this record, we conclude the tria l court did not err by denying Mackey’s petition for writ of habeas corpus. We overru le his issue and affirm the judgment of the trial court.

Do Not Publish Tex. R. App. P. 47.2(b). 220221F.U05 /Robbie Partida-Kipness / ROBBIE PARTIDA-KIPNESS JUSTICE–8– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EX PARTE: DENNY C MACKEY, Appellant

No. 05-22-00221-CR On Appeal from the 422nd Judicial District Court, Kaufman County, Texas Trial Court Cause No. 19-00324-422- F.Opinion delivered by Justice PartidaKipness. Justices Molberg and Carlyle participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered this 3rd day of February 2023.