William MARKS, Appellant v. The STATE of Texas

NOS. PD-0549-17 PD-0550-17 PD-0551-17

Court of Criminal Appeals of Texas.

Delivered: October 3, 2018

Daucie Schindler, Assistant Public Defender, Harris County Texas, 1201 Franklin, 13th Floor, Houston Texas 77002, for Appellant.

Patricia McLean, Assistant District Attorney, Harris County, Texas, 1310 Prairie, 5th Floor, Houston, Texas 77002, Stacey Soule, State's Attorney, Austin, for State of Texas.

Keller, P.J., delivered the opinion of the Court in which Alcala, Richardson, Keel and Walker, JJ., joined.

Appellant was charged in three indictments with acting as a guard company without a license. The indictments, which alleged the same conduct on three separate dates, were later amended to charge him with accepting employment as a security officer to carry a firearm without a security officer commission. The question in this case is whether the original indictments tolled the running of limitations for the amended indictments. We conclude that they did not and affirm the judgment of the court of appeals.

*170**I. BACKGROUND**

On September 20, 2012, Appellant was indicted in three cases (for three different dates) for "act[ing] as a guard company, by providing security services" without a proper business license.1 On November 13, 2014, over Appellant's objection, the State amended the indictments to allege that Appellant "accept[ed] employment as a security officer to carry a firearm" without a security officer commission.2 Both offenses are Class A misdemeanors,3 with a statute of limitations of two years.4 Appellant was convicted and placed on probation.

On appeal, he contended that the trial court erred to allow the State to amend the indictments. He argued that each of the amended indictments charged a different offense than that alleged in each of the corresponding original indictments, so the State was required to obtain new indictments. He also argued that he was harmed by the amendments because, by the time the State moved to amend the indictments, the statute of limitations had run for the new offenses. The State responded that each original and amended indictment alleged the same statutory offense and also targeted the same conduct.

The court of appeals first found that each of the amended indictments fundamentally changed the nature of the allegations and did not allege the same statutory offense.5 Having determined that the trial court erred in allowing the indictments to be amended, the court conducted a harm analysis for non-constitutional error. The State argued that the error was rendered harmless because, rather than amending the indictments, the State could have simply obtained new indictments, with the original indictments tolling limitations. But the court of appeals found that the original and amended indictments did not allege "the same conduct, the same act, or the same transaction," so the original indictments did not toll limitations for the amended indictments.6 Noting that the record would not support convictions for the offenses alleged in the original indictments, the court held that Appellant was harmed.7 On discretionary review, the State takes issue with the court of appeals's tolling analysis.

**II. ANALYSIS**

In *Hernandez v. State* , we held that a prior indictment tolls the statute of limitations for a subsequent indictment "when both indictments allege the same conduct, same act, or same transaction."8 The original and amended indictments do not appear to comply with this requirement. The original indictments alleged that Appellant provided security services as an unlicensed guard company, i.e., operated an unlicensed *171business.9 The amended indictments alleged that he accepted employment to carry a firearm without being personally commissioned to be a security officer.10 Under the amended indictments, Appellant did not even need to actually provide security services-the act alleged in the original indictments. And to provide security services under the original indictments, Appellant need not have carried a firearm or entered into any agreement to do so.

There are some common requirements for obtaining a security services license and a security officer commission,11 but a security officer commission, which allows the carrying of a firearm, involves some extra requirements.12 Suppose a defendant *did* have a license to be in the guard company business and was facing one of these original indictments accusing him of not having such a license. What would make him think that the State was accusing him of (or that he needed to defend against) the allegation that he carried or agreed to carry a firearm without having been personally commissioned to do so?

It might be that a "guard company" indictment could contain enough specific facts to make it clear that the indictment was in fact alleging the same act, conduct, or transaction as a later indictment for agreeing to carry a firearm without a security officer commission. But the indictments in the cases before us do not contain much in the way of facts-they largely track the respective statutes on which they are based. And although the original and amended indictments in each case allege the same date, the indictments use "on or about" language-so that it is not at all clear that the same transaction, much less the same act or conduct, is being alleged.13

We agree with the court of appeals that the offenses alleged in the original indictments did not toll limitations for the offenses alleged in the amended indictments. Consequently, we affirm the judgment of the court of appeals.

Keasler, J., filed a dissenting opinion in which Hervey and Newell, JJ., joined.

1

*See* Tex. Occ. Code §§ 1702.102(a)(1) ("Unless a person holds a license as a security services contractor, a person may not ... act as [a] ... guard company"); 1702.108 (defining "guard company" as someone who engages in the business of or undertakes to provide a ... guard ... on a contractual basis to another person to" prevent certain crimes, or protect property or persons).

2

*See id.* § 1702.161(a) ("An individual may not accept employment as a security officer to carry a firearm in the course and scope of the individual's duties unless the individual holds a security officer commission.")

3

Tex. Occ. Code § 1702.388(b).

4

*See* Tex. Code Crim. Proc. art. 12.02(a).

5

*Marks v. State* , 525 S.W.3d 403, 412-13 (Tex. App.-Houston [14th Dist.] 2017).

6

*Id.* at 416-17.

7

*Id.* at 417.

8

127 S.W.3d 768, 774 (Tex. Crim. App. 2004).

9

*See supra* at n.1.

10

*See supra* at n.2.

11

*See* Tex. Occ. Code § 1702.113.

12

*See id.* § 1702.163.

13

*See**Sledge v. State* , 953 S.W.2d 253, 256 (Tex. Crim. App. 1997) ("It is well settled that the "on or about" language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.").

Yeary, J., filed a dissenting opinion.

***DISSENTING OPINION***

Keasler, J., filed a dissenting opinion, in which Hervey and Newell, JJ., joined.

Under Article 12.05(b) of the Code of Criminal Procedure,"[t]he time during the pendency of an indictment ... shall not be computed in the period of limitation."1 This means that, so long as "an indictment" is pending against the defendant, the relevant limitation period is put on pause. We have rejected the idea that "*any* indictment for *any* unrelated offense" will allow the State to take advantage of this provision.2 Otherwise, "a person could be continually indicted for any offense that the State felt inclined to charge," and the State could thereby perpetually *172skirt the statute of limitations.3 So the question is: What kinds of indictments will give rise to tolling under Article 12.05(b) ?

In *Hernandez v. State* , the defendant was initially charged with possession of amphetamine.4 More than three years later, the State filed another indictment alleging possession of methamphetamine. This was a different statutory offense from the one originally alleged, but we held that, pursuant to Article 12.05(b), the three-year limitation period for the subsequent indictment had been tolled by the pendency of the first. Acknowledging that the legislative history weighed "in favor of reading Article 12.05(b) broadly,"5 we began by laying out the two interpretive extremes in order to find a possible middle ground. First, for the reasons explained above, we declined to interpret the phrase "an indictment" to mean "any indictment for any unrelated offense."6 But we also declined to interpret that phrase to require both indictments to allege the same offense, for we noted that this requirement was present elsewhere in the Code and conspicuously absent from Article 12.05(b).7 Somewhere between these two extremes, we ultimately decided that, under Article 12.05(b), a prior indictment tolls the limitation period for a subsequent indictment "when both indictments allege the same conduct, same act, or same transaction."8

We did not, in *Hernandez* , undertake to provide precise definitions of the terms "conduct," "act," or "transaction." But the kinds of considerations the Court relied upon in adopting this test shed some light. Specifically, we sought to ensure that a defendant subjected to a second indictment would still receive "adequate notice so that he may prepare a defense."9 This concern may be satisfied, we said, "if the prior indictment gives adequate notice of the substance of the subsequent indictment."10 For, "[i]f the defendant has adequate notice of a charge, he can preserve those facts that are essential to his defense."11 We also quoted approvingly of a federal district court opinion that emphasized "the factual basis of an indictment" over the "specific charge alleged" in determining whether a second indictment is proper under the federal analogue to Article 12.05(b).12

Applying the *Hernandez* test to the facts of this case, I disagree that the two sets of indictments alleged impermissibly divergent conduct. Both sets of indictments targeted the same three incidents, on the same three dates, arising from the same set of facts, made criminal within the same Private Security Act.13 "[R]eading Article 12.05(b) to allow the tolling of the statute of limitations for an indictment charging a similar offense does not undermine the purpose of the statute of limitations."

*17314 Though not identical, the offenses in this case are undeniably similar, and that is all that *Hernandez* requires. I do not contest that the two theories of guilt contained within these indictments would have required different proof. But this will almost always be true when different statutory violations are alleged. *Hernandez* makes it abundantly clear that whether two offenses are elementally different is not the proper test for tolling under Article 12.05(b).15 So, instead of restricting our analysis to the particular wording of the indictments, we ought to look at their underlying factual basis16 -Marks's providing private-security services without the proper license.

With these facts in mind, it seems highly unlikely that Marks, charged with one violation of the Private Security Act, would have sought and preserved any different defensive evidence had he known that the State would ultimately prosecute him for an alternate Private-Security-Act violation bearing a strong resemblance to the first. After all, Marks's primary defensive theories were that (1) the Private-Security-Act licensing requirements did not apply to him because, at the time he engaged in private-security services, he was a full-time peace officer; and (2) even if he had not met the requirements of being a full-time peace officer, he believed in good faith that he had. The first of these defensive theories, if credited, would have acquitted him of both the initial, guard-company allegation and the subsequent, armed-security allegation.17 And the second defensive theory likely would not have helped him with respect to either alleged offense, since the Private Security Act's penalizing statute does not prescribe a culpable mental state with respect to either of these discrete licensing requirements.18 It follows that any harm resulting from the State's untimely amendment should not be attributed to the switch from a guard-company allegation to an armed-security allegation, because this switch had no absolutely effect on either of Marks's defensive theories. This is a strong indication that Marks would have understood both indictments to reach the same core conduct or act.

Even if I am wrong about that, I would conclude that the indictments at the very least alleged the same transaction, as each corresponding indictment alleged the same date. It is true that both indictments contain "on or about" language, potentially broadening the time period in which the State might prove an offense at trial. But this was also true in *Hernandez* ,19 and *Hernandez* did not describe "on or about" language as preventing a finding that two indictments reach the same transaction.20 Furthermore, even assuming that the phrase "on or about" casts doubt over whether two same-date-alleging indictments refer to the same transaction, there were two sets of three indictments in this case, and all three corresponding indictments match up day-for-day. This makes it exceedingly unlikely that Marks was initially preparing to defend against allegations pertaining to one span of time, and *174then was surprised to learn that he would have to defend against allegations pertaining to another. With three day-for-day matches, it is far more likely that Marks understood both indictments to target the same transaction.

Because they often have "nothing to do with the guilt or innocence of the persons charged," *Hernandez* sought to limit the impact that "procedural errors and defects in form" would have on the State's ability to re-indict an offender.21 To that end, *Hernandez* instructs us to construe Article 12.05(b)"broadly."22 Today's opinion takes a decidedly narrow view of what that statute permits. I respectfully dissent.

***DISSENTING OPINION***

Yeary, J., filed a dissenting opinion.

When this Court came to say, as a matter of "first impression," what the law is with respect to Article 12.05(b) of the Texas Code of Criminal Procedure, it first set out what it acknowledged was the "literal text" of that provision:

> (b) The time during the pendency of an indictment, information or complaint shall not be computed in the period of limitations.

*Hernandez v. State* , 127 S.W.3d 768, 770 (Tex. Crim. App. 2004) (quoting TEX. CODE CRIM. PROC. art. 12.05(b) ). We immediately conceded that, "[o]n its face, Article 12.05(b) does not require that subsequent indictments allege the same offense or even be based on the same conduct." From these premises, one would have naturally expected the Court's next observation to be that the statute requires no interpretation on our part at all. Its literal meaning is quite plain from its face: The pendency of *any* indictment, information or complaint will toll the limitations period-without qualification.1

If the meaning of a statute is plain, then courts do not engage in "construction" of that statute; they simply implement that plain meaning. *See**Boykin v. State* , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) ("Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.") (internal quotation marks and citations omitted). But not so with *Hernandez* . Instead of implementing what we all but admitted was the plain import of the statute on its face, we immediately jumped to a conclusion that something must be missing: "The Article provides no guidance as to how the indictments must be related to trigger the tolling provision." 127 S.W.3d at 770.2 We did this despite the fact that there is nothing in the literal language of the statute to suggest that there must be any "relatedness" at all between one charging instrument and another already-pending charging instrument before tolling of limitations may be triggered.

It is simple enough to implement the statute without imposing any notion of "relatedness"

*175upon it, and there is no particular reason (at least none that emanates from the statutory language itself) to suppose that we ought to do so. The Court in *Hernandez* complained that " *Boykin* does not tell us what to do when the legislature leaves a gap and provides no guidance about how to apply a statute." 127 S.W.3d at 771. The Court then proceeded to fill its perceived "gap" in the statute "[b]ased on our review of the public policy implications[.]" *Id.* at 774. But there was no such "gap" in Article 12.05(b). The Court may have found it difficult, as a matter of policy, to stomach the breadth of the statutory language on its face, but that did not create a vacuum for the Court to rush in and fill. What *Boykin* tells us to do with a plain statute is to take it at its literal word, come what may.3

We have reiterated since *Boykin* that the "seminal rule of statutory construction is to presume that the legislature meant what it said." *State v. Vasilas* , 187 S.W.3d 486, 489 (Tex. Crim. App. 2006). Moreover, "we interpret the Legislature's statutes, not its intentions." *Getts v. State* , 155 S.W.3d 153, 158 (Tex. Crim. App. 2005). "In adhering to this rule, we show our respect for the legislature and recognize that if it enacted into law something different from what it intended, it would amend the statute to conform to its intent." *Vasilas* , 187 S.W.3d at 489.

It is beyond the scope of the Court's proper authority to "rescue" the Legislature from what we perceive to be "its drafting errors, and to provide for what we might think ... is the preferred result." *Getts* , 155 S.W.3d at 158 & n.11 (citing *Lamie v. United States Tr.* , 540 U.S. 526, 542, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) ). *See also* TEX. CONST. art. II (separation of powers); *Boykin* , 818 S.W.2d at 786 & n.4 (when courts stray beyond the plain language of a statute, they inappropriately invade "the lawmaking province of the Legislature"). This case powerfully illustrates why we should resist all temptations to overlook that limitation. The Court in *Hernandez* obviously preferred as a matter of policy that two charging instruments should somehow be "related" to each other before one that is pending may serve to toll the limitations period for an offense charged in another. The plain reach of the statute's tolling provision is *176far greater, however, and there is no source in the statutory language to justify implementation of the Court's limiting policy preference.

Nonetheless, today the Court finds itself engaging in a debate regarding the proper construction of language that the Court itself adopted in *Hernandez* to fill a perceived policy "gap." The question it wrestles with is: What does it mean to say that a pending indictment and a subsequent indictment "allege the same ... transaction"? 127 S.W.3d at 774. The Court thus struggles to construe, not the language of the statute itself, but instead a court-generated phrase that we ourselves plugged into a statute that needed no "construction" to begin with.

The competing opinions today can agree on no particular definition of "same transaction"-a phrase we have found elusive in other contexts. *E.g.* , *Rubino v. Lynaugh* , 770 S.W.2d 802, 803-05 (Tex. Crim. App. 1989) (noting the inconsistent applications of a "continuous act or transaction" standard for applying the defunct "carving doctrine" for double jeopardy purposes). They simply arrive at different intuitive destinations, without providing much that is useful to facilitate future application of the statutory scheme. Rather than take a side in this debate, I would revisit *Hernandez* , acknowledging that it was wrong at its inception, it is not proving particularly workable, and it should be overruled. *See**Proctor v. State* , 967 S.W.2d 840, 845 (Tex. Crim. App. 1998) ("[W]hen governing decisions of this Court are unworkable or badly reasoned, we are not constrained to follow precedent.").

Applying the plain language of the statute, I would hold that the pending indictment in this case served to toll the limitations period. On that basis I agree with Judge Keasler. Appellant was not harmed by the amendments to the existing indictments. Therefore, like Judge Keasler, I respectfully dissent.

1

Tex. Code Crim. Proc. art. 12.05(b).

2

*Hernandez v. State* , 127 S.W.3d 768, 772 (Tex. Crim. App. 2004) (emphasis in original).

3

*Id.*

4

127 S.W.3d at 769.

5

*Id.* at 771.

6

*Id.* at 772 (emphasis omitted).

7

*Id.*

8

*Id.* at 774.

9

*Id.* at 772 (citing *United States v. Gengo* , 808 F.2d 1, 4 (2d Cir. 1986) ; *United States v. O'Neill* , 463 F.Supp. 1205, 1208 (E.D. Pa. 1979) ).

10

*Id.*

11

*Id.*

12

*Id.* at 773 (citing *United States v. Hill* , 494 F.Supp. 571, 573 (S.D. Fla. 1980) ).

13

*See* Tex. Occ. Code ch. 1702; *id.* § 1702.001 ("This chapter may be cited as the Private Security Act.").

14

*Hernandez* , 127 S.W.3d at 772.

15

*See id.*

16

*Id.* at 773 ("[T]he factual basis of an indictment, rather than the specific charge alleged, is crucial in determining whether the second indictment is proper[.]").

17

*See* Tex. Occ. Code § 1702.322(1).

18

*See id.* § 1702.388(a).

19

*Hernandez v. State* , 74 S.W.3d 73, 74 (Tex. App.-Eastland 2002), *rev'd* , 127 S.W.3d 768 (Tex. Crim. App. 2004).

20

*Hernandez,*127 S.W.3d at 773-74.

21

*See**id.* at 771 (citations omitted).

22

*Id.*

1

"[A]n indictment, information, or complaint" need only be pending to toll the limitations period-there is no other qualifying language in the provision. The word "an" is a variation of the indefinite article "a," which may mean "any" in context. Webster's II New College Dictionary 1999, at 1. Nothing about the context in which it is used in Article 12.05(b) suggests it means anything else.

2

Later, the Court would observe similarly that "we are faced with the task of rounding out the legislature's enactment of Article 12.05(b) because the legislature provided no guidance about how the prior and subsequent indictments should be related to toll the statute of limitations period." 127 S.W.3d at 771.

3

The Court in *Hernandez* suggested, without explicitly holding, that to afford the statute its admittedly plain meaning would result in an absurdity-presumably to justify its intervention to construe the statute notwithstanding its plain import, as authorized by *Boykin* . *See*818 S.W.2d at 785 (holding that, where plain meaning leads to absurd consequences, a court may deviate). We said:

> If we were to read "an indictment" to mean *any* indictment for *any* unrelated offense, then a person could be continually indicted for any offense that the State felt inclined to charge once an initial indictment was filed. This application would defeat the purpose of the statute of limitations, which requires the State to exercise due diligence in obtaining and presenting a formal accusation of an offense against a person.

*Hernandez* , 127 S.W.3d at 772. This constituted a substantial exaggeration. Any offender who has never before been formally charged would still enjoy the benefit of the legislative grace of the statutory deadlines for filing formal criminal charges embodied in Chapter 12 of the Code of Criminal Procedure. *See**Ex parte Matthews* , 933 S.W.2d 134, 136 (Tex. Crim. App. 1996), *overruled on other grounds by**Proctor v. State* , 967 S.W.2d 840 (Tex. Crim. App. 1998) ("Statutes of limitation are acts of grace in that the sovereign surrenders its right to prosecute[.]"). Statutes of limitations do not reflect fundamental rights: "Indeed, at common law there was no limitation as to the time within which offenses could be prosecuted." *Proctor v. State* , 967 S.W.2d 840, 844 (Tex. Crim. App. 1998). There is nothing inherently absurd about the Legislature's decision to extend the scope of its largesse only to those offenders who have no other current formal charges pending.