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Click here for the full text of this decision FACTS:A Nacogdoches County grand jury indicted Tenika Brooks for theft on April 28, 2000. The indictment alleged that a theft, in the amount of between $20,000 and $100,000, occurred between July 1, 1998 and April 1, 2000. The matter was set for trial on Aug. 17, 2006. That day the state moved to amend the indictment to allege multiple thefts as a part of a continuing course of conduct instead of a discrete theft. The trial court denied the motion to amend. The state then moved to dismiss the indictment, alerting the court and Brooks that it would seek another indictment alleging aggregate theft. Brooks objected, but the trial court dismissed the case. Prosecutors filed a subsequent indictment the next day alleging an aggregate theft of between $20,000 and $100,000 as part of a continuing course of conduct. Brooks filed a pretrial application for writ of habeas corpus. The trial court held a hearing and denied relief. This appeal followed. HOLDING:The 12th Court of Appeals dismissed the appeal for want of jurisdiction. In her first and second issues, Brooks argued that the first indictment did not toll the statute of limitations and therefore the statute of limitations barred the second prosecution. Under Texas Code of Criminal Procedure Art. 12.01(4)(A), prosecutions for theft as a felony must be initiated within five years of the theft. The period of limitations is tolled for the time that an indictment is pending, the court stated. A defendant, the court stated, may challenge an indictment that on its face is barred by the statute of limitations by way of a pretrial application for writ of habeas corpus. The second indictment, the court stated, “was returned well outside the limitations period for theft and does not contain a tolling provision.” Brooks could have complained that the indictment did not contain a tolling allegation and that, on the face of the indictment, the prosecution was barred by the statute of limitations. The trial court would have had jurisdiction to consider that matter in a pretrial application for writ of habeas corpus. Instead, the court stated, Brooks challenged the sufficiency of the state’s anticipated tolling argument. But the court stated that Brooks could not raise her tolling allegation in a pretrial application for writ of habeas corpus, because pretrial writs can only be used to attack indictments with incurable defects that cannot be amended before trial. The court found that the indictment at issue could be amended and thus could not be attacked with through a pretrial application for habeas corpus relief. In her third, fourth, and fifth issues, Brooks argued that the trial court should not have dismissed the first indictment. Brooks argued that the trial court had jurisdiction to consider a pretrial application for writ of habeas corpus complaining that a preceding indictment should not have been dismissed. The court, however, held that trial courts lack jurisdiction to consider such a claim. Rather, the court found that Brooks could file a motion to dismiss or to quash the indictment. If the trial court sustained such a motion, the state would have an opportunity to correct its indictment. OPINION:Hoyle, J.; Worthen, C.J., and Griffith and Hoyle, JJ.

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