Affirmed and Memorandum Opinion filed May 21, 2024. 

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 County, Texas

Trial Court Cause No. 22-DCR-101126

MEMORANDUM OPINION

Appellant, the State of Texas, appeals the trial court’s judgment granting 

appellee Michael J. Bitgood’s requested habeas-corpus relief, dismissing without 

prejudice the State’s indictment. Tex. Code. Crim. Proc. art. 44.01(a)(1). The State 

did not file a response in the trial court and has not provided a copy of the 

reporter’s record for the hearings on these matters. We affirm. 
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I. FACTUAL AND PROCEDURAL BACKGROUND

On October 3, 2022, Bitgood was indicted on two 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.” The second count is premised on events occurring “November 

1, 2021 through September 14, 2022,” and alleges that Bitgood

. . .pursuant to the same scheme and course of conduct directed

specifically at Marianna Sullivan knowingly engage in conduct that

constituted an offense under Section 42.07 of the Texas Penal Code, 

namely send messages to Marianna Sullivan despite her representation 

by counsel and request to direct communication to counsel, and refer 

to Marianna Sullivan as a madam, and accuse Marianna Sullivan of 

mental illness, and accuse 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 harassed, annoyed, alarmed, 

abused, tormented, embarrassed, or offended.

The following month Bitgood filed his original application for habeas corpus

and motion to quash the indictment, which days later was followed by an amended 

version, which is the live pleading in this case.1

In his Amended Application and Motion, appellee begins by challenging the 

indictment as brought under a criminal statute which he contends is 

unconstitutional, void for vagueness, and that it fails to draw reasonably clear lines 

between lawful and unlawful conduct. 

1 The live pleadings for purposes of this appeal consist of appellee’s “Application for Writ of 

Habeas Corpus (First Amended) and Motion to Quash Indictment for Lack of Probable Cause

and Challenge to the Statute as Applied to this Individual and the Litigation Privilege to the 

Texas Rules of Civil Procedure” (Amended Application and Motion), and Bitgood’s “First 

Supplement to the Application for Writ of Habeas Corpus (First Amended) and Motion to Quash 

Indictment for Lack of Probable Cause and Challenge to the Statute as Being Facially 

Unconstitutional” (“Supplemental Pleading”).
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Bitgood argued that the allegations set out in Count One of his two-count

indictment were facially fatal as alleging an offense outside a statute of limitations 

period.

Bitgood argued that both counts asserted against him were unconstitutional 

as applied, that they lacked probable cause, and failed to inform appellant how his 

conduct constituted criminal conduct under the statute. He contends “[t]here is no 

distinction between the alleged repeated misdemeanor offense message and the

alleged felony offense communication on more than one occasion, other than the

whim of the complainant or the prosecutor.”

Bitgood also argued the indictment failed to provide him adequate “due 

process notice” for lack of allegations concerning the element of “intent” and 

failing to describe the specific “manner” that the communications were sent such 

that they were “likely to harass, annoy, alarm, abuse, torment, embarrass, or offend 

another”.

In the section titled “WHAT THE GRAND JURY APPARENTLY DID 

NOT KNOW,” Bitgood detailed his background with the complainant where he 

represented himself and others against complainant in a series of landlord-tenant 

disputes. He argued that the complained-of communications that form the basis of 

the indictment were made in the course of litigation. 

In a subsequent section he contended that the indictment was supported by 

fabricated facts. 

the complainant knew she was breaking the law, defrauding the 

CARES act, and illegally invoking the jurisdiction of courts of Fort

Bend County. To help cover up this misconduct and silence the

Defendant, the complainant and her police officer employee 

fabricated this criminal charge, most likely if not certainly with the 

assistance of others as well. 
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In the last substantive section of his Amended Application, entitled “VI. 

THE RECUSAL OF THE DISTRICT ATTORNEY,” Bitgood makes various 

allegations regarding the Fort Bend District Attorney and the complainant: he 

alleges that the Fort Bend District Attorney became critical of complainant in some 

fashion after discovering apparently undisclosed facts about the charges originally 

filed against appellee and that the complainant brought an “all out smear campaign 

against” the Fort Bend District Attorney, whose recusal he contends was procured 

by a contrived “call for service” and fraud by omission of certain facts. The Fort 

Bend District Attorney was recused and an attorney pro tem was appointed to 

prosecute the case. Bitgood then noted:

It is a separate issue that the attorney pro tem had no authority to 

present an alleged felony offense to a grand jury or act as a pro tem in 

a felony matter in a district court after being appointed by a county 

court at law judge, because county courts at law, and their judges, lack 

jurisdiction over felony indictments, and matters that by Penal Code 

definition constitute felony offenses.

Bitgood also filed his Supplemental Pleading which asserted his facial

challenge to the statutory provisions; he argued that “the statute in question for 

which he was indicted is unconstitutional on its face and suffers from over-breadth, 

making it unconstitutional as presented in the indictment.”

The State filed no response to the Amended Application and Motion or 

Supplemental Pleading. The State only responded to the arguments concerning the 

pro tem’s authority and the county court at law’s appointment-jurisdiction. 

A hearing was held on the Amended Application and Motion, which the 

court’s order recites was “sworn and uncontroverted.” On appeal Bitgood

contends that both “lay and expert testimony” were presented to the court; the State

has not disputed this assertion. The trial court’s order states: 
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The application for writ of habeas corpus is granted on the grounds as 

stated in the sworn and uncontroverted application and the arguments 

made to the court. To that extent, the Defendant is discharged and 

ordered released forthwith from all manner of restraint. With regards 

to the motion to quash the indictment, that motion is GRANTED, and 

the indictment is quashed without prejudice as to the State's ability to 

represent if the State desires to proceed again. Should the State refile 

any charges against this Defendant, the State is ordered to issue a 

summons to him to appear, as the Court finds from personal 

observation that the Defendant is a disabled senior citizen and poses 

no risk of flight, and has made all of his court appearances.

The hearing was recorded, but the State has chosen not to request the 

reporter’s record to be included as a part of our record. 

II. ISSUES AND ANALYSIS

In its three issues on appeal, the State challenges some, but not all, grounds

raised by appellee in his Amended Application and Motion and upon which the 

trial court based its order dismissing the indictment.

Relevant Standards of Review

In general, we review a trial court's ruling on an application for writ of 

habeas corpus using an abuse-of-discretion standard, and we view any evidence in 

the light most favorable 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 parte Fusselman, 621 S.W.3d 112, 

116 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d). 

Appellate courts review a trial judge's rulings on a motion to dismiss or

quash a charging instrument de novo. State v. Barbernell, 257 S.W.3d 248, 251-52 

(Tex. Crim. App. 2008). The trial court's ruling should be upheld if it is correct 

under any theory of law applicable to the case. State v. Rhinehart, 333 S.W.3d 154, 

161 (Tex. Crim. App. 2011) (applying ordinary rules of procedural default to a 
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State's appeal of a trial court's order quashing the indictment).

Analysis

For the sake of efficiency, we first look to the grounds upon which the trial 

court judgment could be based which the State has not addressed.

Bitgood’s statute of limitations argument presented to the trial court stands 

among those grounds not addressed by the State. Application for writ of habeas 

corpus is an available vehicle to invoke statute of limitations “if the pleading, on its 

face, shows that the offense charged is barred by limitations” 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, based on Bitgood’s alleged conduct

(of sending messages) occurring “May 21, 2018 through January 30, 2019,”

describes an offense for felony stalking. See Tex. Penal Code § 42.072(a). Charges 

must be presented three years from the date of the commission of the offense. Tex. 

Code Crim. Proc. art. 12.01(9). Thus, in this case notwithstanding any applicable 

exception, the State was required to present the felony stalking charge no later than

January 30, 2022. The face of the indictment which contains a file-stamp for 

“October 3, 2022” demonstrates the felony stalking charge was presented over 

eight months late. 

Next, to the question whether the count was reparable by resort to an 

exception, the State made no argument that any exception applied to repair the 

infirmity of the indictment. Moreover, the record in this case does not fulfill the 

requisites presented in Ex parte Edwards for rejecting a statute-of-limitation claim

in a pretrial habeas 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 

limitation may be reparable by resort to an exception. If so, then a statute-oflimitation claim is not cognizable on pretrial habeas.”). The State made no attempt
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to respond in the trial court; to establish any statute-of-limitations exception that 

could actually or even potentially, i.e., with evidence at trial, repair the indictment. 

Upon the record before us and under the applicable standard of review, the trial 

court properly disposed of count one of the indictment on the basis that it was 

barred by the statute of limitations. 

If we were to presume that the second count of the indictment lacked any 

defect that would independently support a cognizable habeas claim, Bitgood’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 even if it is cognizable to less than all counts of 

the multi-count indictment).

The second count, alleging conduct between November 1, 2021 through 

September 14, 2022, was timely filed. However, the State’s defense of the second 

count was woefully deficient. Just as an accused, who has a right to be charged by 

an instrument that is free of defects, errors, and omissions, must object to any error 

in the charging instrument in a timely and specific manner, it also incumbent on 

the State, if it wishes to preserve a challenge to any order sustaining the accused’s

objection, to take action necessary to avoid application of “ordinary rules of 

procedural default.” See State v. Rhinehart, 333 S.W.3d 154, 162 (Tex. Crim. 

App. 2011) (applying ordinary rules of procedural default to decide that the State, 

as the losing party in the trial court, could not raise for the first time on appeal a 

claim that there was no valid basis for the trial court to have quashed the 

indictment.)

Bitgood has argued that the State, by failing to respond, waived its 

objections to the (entire contents) of the trial court’s judgment based upon his 

Amended Application and Motion. Indeed, other than presenting written 
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arguments about its authority to prosecute the case, the State offered no response 

or objection announcing its opposition to Bitgood’s Amended Application and 

Motion. A record was made of the hearing, after which the court recited that the 

application was “uncontroverted.” Bitgood’s argument raises references to two 

distinct but related waiver/preservation concepts: first, that in order to present a

complaint for appellate review a party must present a record showing 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 contain a clear and concise 

argument for the contentions made, with appropriate citations to authorities and to

the record. Tex. R. App. P. 38.1(i). We conclude the State has waived its 

opportunity to challenge the trial court’s judgment. On appeal the State has not 

shown that it presented any complaint in the record to Bitgood’s Amended 

Application and Motion that it now seeks as a basis for reversing the judgment, and 

in the absence of a reporter’s record, we presume any evidence provided to the 

court at the hearing supports the court’s order quashing both counts. Tex. R. App. 

P. 33.1, 38.1(i); see also State v. Rhinehart, 333 S.W.3d at 162.

III. CONCLUSION

We affirm the trial court’s habeas-corpus judgment. 

/s/ Randy Wilson

Justice

Panel consists of Justices Jewell, Spain, and Wilson.

Do not publish — TEX. R. APP. P. 47.2(b).