Affirmed and Memorandum Opinion filed May 21 , 202 4.

In The 

## Fourteenth Court of Appeals

NO. 14

- 23

- 00047

- CR

THE STATE OF TEXAS , Appellant

V.

MICHAEL J. BITGOOD , Appellee

On Appeal from the 240th District Court Fort Bend Coun ty, Texas Trial Court Ca u se No. 22

- DCR

- 101126

MEMORANDUM OPINION
Appellant, the State of Texas, appeals the trial court’s judgment granting appellee Michael J. Bitgood’s requested ha b eas
- corpus relie f , dismissing without prejudice the State ’s indictment

. Tex. Code. Crim. P roc. art. 44.01 (a)(1) . T he Stat e did not file a response in the trial court and has not provide d a copy of the reporter ’ s record for the hearings on these matters

. We affirm.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND On October 3, 2 0 22, Bitgoo d was indicted on tw o counts of felony stalking on charges tracking the language of sections 42.07(a)(7) and 42.072(a)(3)(D) of the
Texas Penal Code.

The first count is premised on events occurring “ May 21, 2018 through January 30, 2019

. ” Th e second co unt is premised on ev ents occurring “ November 1, 2021 through September 14, 202 2 , ” and alleges that Bitgood

. . . pursuant to the same sche me and course of conduct directed specifically at M arianna Sullivan knowingly engage in conduct that const i tuted an offe nse under Se ctio n 42.07 of the Texas Penal Code, namely send messages to Marianna Sullivan despite her representation by counsel and req uest to direct communication to co unsel, and refer to Marianna Sullivan as a madam, and accuse Marianna Su l livan of ment al illness, and ac cuse Marianna Sullivan of being a sex worker, and the defendant's conduct would cause a reasonable person to, and did cause Marianna Sullivan to feel ha rassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.
T h e following m onth Bit g ood fil ed his original application for habeas corpus and motion to quash the indict ment , which days later was followed by an am ended
version , which is the live pleading in this case. 1
In his Amended Application and Motion , appellee begins by cha llenging the
indi ct ment as brought under a criminal statute which he contends is unconstitutional, void for vagueness, and that it fails to dra w reasonably clear lines
between lawful and unlawful conduct.

1 The live pleading s for purposes of this appe a l consist of appellee’s “ Applica tion for Writ of Habeas Corpu s (First Amended) and Mo tion to Quash Indictment for Lack of Probable Cause and Challenge t o the Statut e as Applied to this In dividual and the Litigation Privilege to the Texas Rules of Civil Pr o cedure ” (Amended Application and Motion) , and Bitgood ’s “ Firs t Supplement to the Appl ication for Writ of Habeas Corpus (First Amended) and Motion to Qua sh In dictmen t for Lack of Probable Cause and Challenge to the Statute as B eing Facially Unconstitutiona l ” ( “Supplement al Pleading ”).3 Bitgood argued that the allegations set out in Count One of his two

- c ount i ndictment were facially fatal as alleging an offense outside a statute of limitations period

. Bitgood argued that both counts asserted a gainst him were unconstitutional as applied , that they lacked probable cause, and failed to inform appell ant how h is

con duct constituted criminal conduct under the statute

. He contends “[t]here is no distinction between the alleged repeat ed misdemeanor offense message and the alleged felony offense communication on more than one occasion, oth er than the
whim of the co mplain ant or t he prosecutor .”

Bi tgood also argued the indictment fa iled to provide him adequate “due process notice” for lac k of allegations concerning the element of “intent” and failing to describe the specific “manner” that the communications w ere sen t such

t hat they were “ likely to harass, annoy, alarm, abuse, torment , embarrass, or offend
another”

. In the section titled “ W HAT THE GRAND JURY APPARENTLY DID
NOT KNOW , ” Bitgood d etai led his background wi th the complainant where h e represented himself and o ther s against complainant in a series of landlord

- tenant disputes. He arg ued that the complained

- of communications that form the basis of
the indictment were mad e in the course of litigation

.
In a subsequent section he con tend ed that the indictment was su pporte d by
fabricated facts.
the complainant knew she was breaking the law, defrauding the CARES act, and illegally invoki ng the jurisdiction of courts o f Fort B end County. To help cover up thi s misconduct and silence the Defendant, the complainant and h er pol ice officer employee fabricated this criminal charge, most likely if not certainly with the assistance of others as we l l.4 In the last subst a ntive section of his Amended Application, entitl ed “ VI.
THE RECUSAL OF THE D ISTRICT ATTORNEY , ” Bitgood make s variou s allegations regarding the Fort Bend District Attorney and the complainant : he
all eges that the Fort Bend District At torney became critical of complainant in some
fa shion afte r discovering apparently und isclosed facts about the charges originally
fi led ag ainst appellee and that the complainant brought an “ all out smear campaign against ” the Fort Bend District Attorney , w hos e recusal he contends was procured by a contrived “ call for service ” and fraud by omission of certain facts. The Fort
Bend Dis t rict A ttorney was recused and an attorney pro tem was appointed to prosecute the case

. Bitgood then noted :

It is a separat e issue that the attorney pro tem had no authority to present an alleged felony offense to a grand jury or act as a pro t em in

a fe l ony ma tter in a district court after being appointed by a county court a t law judge, because county courts at law, and their judges, lack jurisdiction over felony indictments, a nd matters that by Penal Code definition constitute felony offenses

. Bitgood a lso fi led his Supplemental Pl eading which asserted his facial challenge to the statutory provisions ; he argued that “ the sta tute in question for
which he was indicted is unconst itutional on its face and suffers from over

- breadth, making it uncons titutiona l as pr ese nted in the indictment .”

The State filed no response to the Ame nded Application and Motion or Supplemental Pleading

. The State only responded to the arguments concernin g t he
pro tem ’s authority and the county court at law ’s appointment

- jurisdicti o n.

A hearing was he ld on the Amended Application and Motion , which the

court ’s order recite s was “ sworn and uncontroverted

. ” O n appeal Bitgood
contends that both “ lay and e xpe rt tes timony ” were presented to the court ; the State has not disputed this ass e rtion. Th e trial court ’s order states:5 The application for writ of ha beas corpus is granted on the grounds as stated in t he sworn and uncontrovert ed application and the arg um ents made to the court. To that extent, the Defendant is discharged and ordere d relea sed forthwith from all manner of restraint. With regards to the mo tion to quash the indictment, that motion is GRANTED , and the indictment is q uashed without prejudice a s to the State's ability to represent if the State desires to proceed again. Sho u ld the State refile any charges against this Defendant, the State is ord ered to issue a

summons to him to appear, as the Cou rt finds from personal ob servation that the Defendant is a disabled senior citizen and poses no risk of flight, and ha s made all of his co urt appearances. The hearing was record ed , but t he State has chose n not to request the reporter ’ s record to be include d as a part of our record.

II. I SSUES AND A NALYSIS In its three issues on appeal , the State challenges some , but not all , grou nds

ra ised b y appellee in hi s Amended Application and Motion and upon w hich the
trial court based its order dismissing the indictment

. Rele v a nt Standard s of Rev iew

I n general, we review a trial court's ruling on an appli cation for writ of
habeas corpus usi ng an abuse

- of

- discretion standard, and w e view any evidence in the light most favorab le to that ruling and defer to implied factual findings supported by the record. Phuong Anh Thi Le v. State , 300 S.W.3d 324, 327 (Tex. App.

— Houston [14th Dist.] 2009, no pet .) ; Ex part e Fusselman , 621 S.W.3d 112 , 116 (Tex. App.

— Houston [14th Dist.] 2021, p et. ref’d)

. Appellate courts review a trial judge's r ulings on a motion to dismis s or quash a charging instrument de novo. State v. Barbernell , 257 S.W.3d 248, 251

- 52 (Tex . Crim. App. 2008). Th e trial court's ruling shou ld be upheld if it is correct
und er any theo ry of law applicable to the case. State v. Rhinehart , 33 3 S.W.3d 154, 161 (Tex. Crim. App. 2011) (applying ordinary rules of procedural default to a6 State's ap peal of a trial court's or der quashing the indictment ).
Analysis
For the sake of efficiency, we f irst look to the grounds upon which the trial

court ju d gme nt could be bas ed which the State has not addressed.
Bitgood ’ s statute of limita t ions arg ument presen ted to the trial court stand s among those grounds not ad dressed by the State. A p plication f or writ of habeas

corpus is an available vehicle to invoke statut e of limitations “if t he pleading, on its face, shows that the offense charged is barred by limitati ons” and is not reparable by resort to an exception

. See Ex parte Edwards , 663 S.W.3d 614, 618 (Tex. Crim. App. 2022)

. The first count of the indictment , ba sed on Bi tgood ’ s alleg ed conduct (of se nding messages) occurring “ May 21, 2018 through January 30, 2 019 , ”
describes an offen se for felony s talking

. See Tex. Penal Code § 42.072( a)

. C harges

m ust be presented three years from the da te of the commission of the offense

. Tex.
Code Crim. Pro c

. art. 12.01 (9)

. Thus, in this case notwiths t anding any applicable

exce ption , the State was required to present the felony stalk ing charge no later than January 30, 2022. The face of the indictmen t which contains a file

- sta mp for

“ October 3, 2022 ” demonstrates the felon y s talking charge was present e d over ei ght months la te

. Next, to the question whether the count was reparable by resort to an exception , t he State made no argument that any exception applied to repa ir the infirmity of the indictment

. Moreover, t h e record in this case does not ful fil l the requisites pres en ted in Ex parte Ed wards for rejecting a statute

- of

- limitation claim
in a pretrial hab e as as not cognizable

. See Ex parte Edwards , 663 S.W.3d 614, 618 (Tex. Crim. App. 2022) ( “ An indictment returned outside a general statute of
limit a tion may be reparable by r esort to an exception. If so , then a statute

- of

limitation claim is not cognizabl e on pretrial habeas. ” )

. T he State made no attempt7 to respond in the trial court ; to establish any statute

- of

- limitations exception that
could act u a lly or even potentiall y , i .e., with evidence at trial, repair the indictment

. Upon the record before us and und er the applicable standard of review , the trial court properly dis posed of count one of the indictment on the basis that it was
barred by t he st a tu te of l imitations.

If we were to presume that the second count of the indictment lacked any d efect th at would independ ently support a cognizable habeas claim , Bi tgood ’ s habeas claim under the two

- count indictment was independently cognizable

. Ex parte Couch , 678 S.W.3d 1, 7

– 8 ( Tex. Crim. App. 2023) ( holding that a habeas
claim can stand for merits review e v e n if it is cognizable to less than all counts of
the multi

- count indictment )

. The second count, alleging conduct between November 1, 2021 through
S eptember 14, 2022, wa s ti mely filed. However, the State ’ s defense of the second

c ount was woefully defici ent. J ust as an a ccused , wh o has a right to be charged by an instrument that is free of defects, errors, and omissions , mu s t object to any error in t he charging instrumen t in a timely and specific manner , it also incumbent on
the State , if it wishes to pr eserve a c hallenge to any order sustaining the a ccused ’ s objection , to take action necessary to avoid appl ication of “ o rdinary rules of procedural de f ault

. ” See State v. Rhin ehart , 333 S.W.3d 154, 162 (Te x. Crim. App. 2011) ( applying ordinary rules of pro cedural default to decide that the State,
as the losing party in the trial court, could not raise for the f irst time on appeal a
claim th a t there was no valid basis for th e tr ial co urt to have quashed t he
indictment. )

Bit good has ar gued that the State , by failing to respond, wa i ved its objections to the (ent ire contents) of the trial court ’s judgme nt based up on his Amended Applica t ion and Motion. Indeed, o ther than pr esen ting written8 arguments about its authority to prosecute th e case, the State offered no response or objection an nouncing it s opposition to Bitgood ’ s Amended Application and
Motion. A record was made of the hearing, after which the court recited that the

app lica tion wa s “ uncontroverted

. ” B itgood ’ s arg u ment raise s references to two distinct but related waiver /p reser vation concepts : first, that in order to present a complaint for appellate review a part y must present a record s h owing the complaint was made to the trial court and was ruled on expressly or implicitly , Tex. R. App. P. 33.1 ; and then , when presenting the complaint to the court of appeals in its brief, the appellant ’ s argument must c ontain a clear and concise

argumen t for the contentions made, with appr opriate citation s to authorities and to

t he record

. Tex. R. App. P. 38.1(i)

. We con clude the S tate has waived its

op portunity to challenge the trial court ’ s judgment

. On appe al the State has not shown that it presented a ny complaint in the record to Bi tgoo d ’ s A m ended Ap plica tion and Motion that it now seeks as a basis for reversing the judgment , and
i n the absence of a reporter ’ s record, we presume any evidence provided to the

court at the hearing supports the court ’ s or d er quas hing both counts. Tex. R . Ap p. P. 33.1 , 38.1(i) ; s ee also State v . Rhinehart , 333 S.W.3d at 162

.
III. C ONCLUSION

We affirm the trial cour t ’ s habeas

- corpus jud gment

.

/s/ Randy Wilson Justice

Panel consi s ts of Justic es Jewell , Spain , an d Wilson

. Do not publish

— T EX

. R. A PP

. P. 47.2(b).