Opinion
Nos. 13-02-492-CR, 13-02-493-CR
Memorandum Opinion delivered and filed December 2, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 332nd District Court of Hidalgo County, Texas.
Before Justices HINOJOSA, RODRIGUEZ, and GARZA.
MEMORANDUM OPINION
The State of Texas appeals from the decision of the trial court to dismiss an indictment against appellee, Michael Kent Plambeck, and to grant Plambeck a pre-trial writ of habeas corpus. Because the State has failed to demonstrate that it could not have re-indicted Plambeck following the order of dismissal, we affirm.
Background
The State originally brought indictments charging Plambeck with barratry and conspiracy to commit barratry on April 18, 2000 and March 21, 2000, respectively. The indictments described seven separate offenses of barratry, all of which occurred between March 1998 and December 1998, as well as two separate instances of conspiracy to commit barratry, which occurred during September 1997. During the grand jury proceedings leading to these indictments, the State's attorneys allowed Texas Ranger Israel Pacheco to participate. Ranger Pacheco spent months questioning witnesses before the grand jury before the indictments were returned. The State now concedes that Ranger Pacheco's involvement with the grand jury proceedings violated the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 20.04 (Vernon Supp. 2004). The State voluntarily dismissed both the indictments on December 21, 2001, having already re-indicted Plambeck for both crimes on December 19, 2001. These second indictments were filed in a different court and did not refer to the first indictments. However, in obtaining the second indictments, the State's attorney read testimony to the grand jury from transcripts of statements made by several witnesses to Ranger Pacheco during the first proceeding. The State then voluntarily dismissed the second set of indictments on May 23, 2002, and again re-indicted Plambeck for both crimes on April 30, 2002. This third set of indictments described both earlier indictments for purposes of tolling the statute of limitations. See TEX. CODE CRIM. PROC. ANN. art. 12.05 (Vernon 1977). Plambeck filed both a motion for dismissal of this last indictment based on improper grand jury proceedings and a writ of habeas corpus. In August 2002, the trial court granted both the motion for dismissal and the writ, a decision from which the State now appeals. Specifically, the State argues in two issues that: (1) the trial court erred in granting Plambeck's writ of habeas corpus on limitations grounds because the limitations period was tolled by the pendency of continuous indictments charging offenses under the same penal statute; and (2) the trial court erred in dismissing the indictments on grounds of improper grand jury proceedings because (i) Plambeck failed to prove that the State's error violated a constitutional right, and (ii) Plambeck failed to prove that dismissal was necessary to cure the error.Prejudice
A preliminary issue that must be addressed is whether the trial court dismissed the indictment with our without prejudice. The trial court granted Plambeck's motion to dismiss the indictment due to improper grand jury proceedings without further noting that the dismissal was granted "with prejudice." The State argues in its brief that:While the dismissal order does not specifically recite that the indictments were dismissed "with prejudice," the State could not re-indict Appellee because, at the time of the dismissals, the statute of limitations for initiating a new indictment (that is, one not tolled by a previous indictment) had already run.We disagree with this assertion. The pendency of an indictment acts to toll the statute of limitations on any offense. See id. As the State itself argues in its appellate brief, the statute of limitations was tolled for both the offenses of barratry and conspiracy due to the pendency of the continuous indictments against Plambeck. The State further notes: It is well-settled that, even when the first indictment is invalid for some reason, the time an invalid first indictment is pending in the trial court tolls the statute of limitations as long as the second indictment is brought under the same penal statute as the invalid first indictment. Ex Parte Slavin, 554 S.W.2d 691, 692-93 (Tex.Crim.App. 1977); Prince v. State, 914 S.W.2d 672, 674 (Tex.App.-Eastland 1996, pet. ref'd). The statute of limitations had been tolled from the date of the first set of indictments until the date of the trial court's order dismissing the indictments in August 2002. The statute of limitations for both barratry and conspiracy to commit barratry is three years. See TEX. PEN. CODE ANN. §§ 15.02 (d), 38.12 (Vernon 2003); TEX. CODE CRIM. PROC. ANN. art. 12.01(6) (Vernon Supp. 2004). Once the trial court announced its decision, the State had twenty months remaining to re-indict Plambeck on the seven counts of barratry before the three-year statute of limitations expired, and almost five months remaining to re-indict him on the two conspiracy counts. See TEX. CODE CRIM. PROC. ANN. arts. 28.05, 28.06, 28.08 (Vernon 1989). According to its own argument, the State could have re-indicted Plambeck through the filing of two new indictments without violating the statute of limitations. See State v. Fass, 846 S.W.2d 934, 935 (Tex.App.-Austin 1993, no pet.) (if trial court dismisses or sets aside indictment without prejudice, State may initiate new proceedings against defendant within time allowed by law). We conclude therefore that the trial court dismissed the indictments without prejudice to the State. Given that prejudice was not established, we turn to the State's argument on appeal. The State argues that the only reason for an indictment to be dismissed without the State's consent is where dismissal with prejudice is necessary to protect the defendant's constitutional rights and dismissal of the indictment was necessary to neutralize the taint of the unconstitutional action. See State v. Terrazas, 962 S.W.2d 38, 41-42 (Tex.Crim.App. 1998); see also State v. Mungia, 119 S.W.3d 814, 817 (Tex.Crim.App. 2003) (affirming trial court's dismissal with prejudice where no constitutional violation had occurred). Every case cited by the State in support of this argument is one in which the trial court erroneously dismissed the indictment with prejudice and was reversed, see, e.g., State v. Frye, 897 S.W.2d 324, 326 (Tex.Crim.App. 1995), or the trial court had not dismissed the indictment at all, despite a motion to do so by the defendant. See, e.g., Wilson v. State, 854 S.W.2d 270, 276 (Tex.App.-Amarillo 1993, pet. ref'd). We have been directed to no legal authority that would require us to reverse a dismissal made without prejudice. See TEX. R. APP. P. 38.1(h). The State could have attempted to re-indict Plambeck without relying on the grand jury testimony tainted by Pacheco's involvement within the statutory limitations period. However, as it failed to and instead allowed the limitations period to expire without attempting to re-indict, we are not compelled to reverse the decision of the trial court. See Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App. 1999) ("law of invited error" estops a party from making appellate error of action it itself induced); Gonzalez v. State, 115 S.W.3d 278, 286 (Tex.App.-Corpus Christi 2003, pet. ref'd) (appellant should not be allowed to create problem at trial level, then complain on appeal of self-induced error). Accordingly, we overrule the State's second issue on appeal and affirm the decision of the trial court dismissing the indictments against Plambeck. Given that our decision regarding the motion to dismiss the indictments is sufficient to determine the outcome of the case, we decline to address the State's remaining issue on appeal regarding the writ of habeas corpus as unnecessary and redundant. See TEX. R. APP. P. 47.1. We affirm.