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Click here for the full text of this decision FACTS:The appellant was arrested on July 19, 1997, for carrying a concealed weapon. When booking the appellant into jail, the intake officer found a plastic baggie containing a light brown powder in the crotch of the appellant’s pants. A field test revealed that it was a controlled substance, and the officer believed that it was amphetamine or cocaine. On July 24, 1997, the state indicted the appellant with possession of 4 to 400 grams of amphetamine. On Sept. 27, 2000, the state filed a second indictment, charging the appellant with possession of 4 to 200 grams of methamphetamine. In the second indictment, the state alleged that the statute of limitations had been tolled by the pendency of the first indictment, pursuant to Texas Code of Criminal Procedure Article 12.05(b). The appellant filed a motion to quash the second indictment, claiming that it was barred by the statute of limitations because it charged an offense other than the one charged in the first indictment. The trial court denied the appellant’s motion to quash, and pursuant to a plea agreement for punishment and the dismissal of the first indictment, the appellant pleaded guilty to the second indictment. The trial court sentenced the appellant to five years imprisonment, which was probated, and a $1,500 fine. On appeal, the appellant complained that the trial court erred in concluding that the first indictment tolled the statute of limitations. The Court of Appeals agreed, reversed the appellant’s conviction, and dismissed the second indictment. HOLDING:Reversed and remanded. The court is faced with the task of rounding out the legislature’s enactment of Texas Code of Criminal Procedure 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. Article 28.10 allows the state to amend charging instruments to cure certain defects under certain circumstances. Article 28.10 (c) reads, “An indictment or information may not be amended over the defendant’s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.” If the Legislature had intended, under Article 12.05, to require that a subsequent indictment not charge an additional or different offense, then it could have written that requirement into Article 12.05 just as easily as it did in Article 28.10. The question, then, is what Article 12.05 permits. The defendant must have adequate notice so that he may prepare a defense. United States v. Gengo, 808 F.2d 1 (2d Cir. 1986). Allowing the prior indictment to toll the statute of limitations would not defeat the purposes of the statute of limitations if the prior indictment gives adequate notice of the substance of the subsequent indictment. If the defendant has adequate notice of a charge, he can preserve those facts that are essential to his defense. Of the 35 states that have a pending-indictment tolling provision, 16 specify that the period of limitations computed shall not include any time during the pendency of an indictment for the “same conduct,” “same act,” or “same transaction.” The Model Penal Code �106(6)(b) also provides that the statute of limitations does not run when prosecution against the defendant for the “same conduct” is pending. California legislators revised the California Penal Code to allow a pending indictment for the “same conduct,” instead of “same offense,” to toll the statute of limitations. The legislators made this change because “same offense” was too narrow a requirement. Only nine states and the District of Columbia explicitly require a subsequent indictment to charge the “same offense” for a prior indictment to toll the statute of limitations. Other jurisdictions have not interpreted their tolling provisions to require that a subsequent indictment charge the same offense for the tolling of the statute of limitations unless the penal code provision explicitly says the offenses must be the same. The court also finds it persuasive that most states with specific requirements in their pending indictment tolling provisions require “same conduct,” and not the more narrow “same offense.” Based on a review of the public policy implications, the court holds that, to fulfill the Legislature’s purpose in enacting Article 12.05(b), a prior indictment tolls the statute of limitations under Article 12.05(b) for a subsequent indictment when both indictments allege the same conduct, same act or same transaction. Both the prior and subsequent indictments alleged the same conduct. As a result, Article 12.05(b) tolled the limitations period during the pendency of the prior indictment. OPINION:Price, J., delivered the opinion of the court, in which Meyers, Womack, Johnson, Holcomb, and Cochran, J.J., joined. CONCURRENCE:Keasler, J.; Keller, P.J., and Hervey, J., join. “The majority says that Boykin v. State does not address the situation of a statute’s silence, and as a result, the court must “round out” the law and “impose its own construction.” I disagree. . . . “I would apply Boykin to this case and conclude that this statute is ambiguous. I would then consider extra-textual sources, which the Court does in the remainder of its opinion. I would reach the same conclusion that the Court does regarding Art. 12.05(b).”

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