Affirm and Opinion Filed February 3, 2023 

S 

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 habeas corpus and motion to quash. Mackey was 

indicted for aggregate theft of over $100,000 but less than $200,000. See TEX. PENAL 

CODE § 31.09. Mackey alleges the statute of limitations prevents the State from 

proceeding with its re-indictment of his case and his application for writ of habeas 

corpus should have been granted. We affirm. 

BACKGROUND 

 Mackey was arrested for abuse of official capacity related to allegations he 

stole money from the Crandall Volunteer Fire Department in 2013 and was later 
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indicted in 2017 for theft of over $100,000 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 Volunteer Fire Department suspected Mackey, 

who was the secretary/treasurer, obtained 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 indictment 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 recommended 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 amend 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, Mackey alleges the indictment: 
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1. was amended over his objection 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 United States Constitution; 

3. failed to give Mackey sufficient notice of the nature and cause of 

the accusation against him as required by the code of criminal 

procedure, the Texas Constitution, and the United States 

Constitution; 

4. was untimely and violated the statute of limitations and failed to 

allege the proper tolling language; 

5. denied Mackey his right to a speedy trial pursuant to the code of 

criminal procedure, the Texas Constitution, and the United States 

Constitution; and 

6. violated Mackey’s Due Process Clause of the United States 

Constitution. 

After a hearing, the trial court denied Mackey’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 conduct, 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; 
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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 Indictment 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 State challenges this Court’s jurisdiction to 

consider Mackey’s appeal. It argues Mackey is essentially appealing the denial of 

his motion to quash the indictment which is an interlocutory appeal and not 

cognizable as a pre-trial appeal. 

I. Applicable Law 

 A pre-trial writ of habeas corpus 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 circumstances: (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 curiam). 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). 
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 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 fundamentally 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 barred by the statute of limitations, we have 

jurisdiction to review the indictment by which he is charged. Ex parte Tamez, 4 

S.W.3d 854, 856 (Tex. App.—Houston [1st Dist.] 1999), aff’d, 38 S.W.3d 159 (Tex. 

Crim. App. 2001). We review this 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 jurisdiction to consider the portion of this 

appeal of the motion to quash because it is interlocutory in nature 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 dismiss 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 
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*1 (Tex. Crim. App. June 17, 2020). Pretrial habeas is usually 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 substance and sufficiency of the indictment. See id. 

at *2. However, an indicted person may raise a limitations challenge when the face 

of the indictment “shows the prosecution is barred by limitations.” Ex parte Doster, 

303 S.W.3d 720, 724 (Tex. Crim. App. 2010). 

 Mackey argues the re-indictment charged 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 the 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 limitations for theft is five years. See TEX. CODE CRIM.

PROC. art. 12.01(4)(A). “The time during 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 same 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 statute of limitations and on its face, the 

indictment does not show it is barred by the statute of limitations. See Hernandez, 

127 S.W.3d at 772; Ex parte Edwards, 2022 WL 1421507, at *4; cf. Tamez, 38 
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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 trial court did not err by denying Mackey’s 

petition for writ of habeas corpus. We overrule 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 
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S 

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 date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered this 3rd day of February 2023.