Eric Jerome Olivas v. The State of Texas--Appeal from 112th District Court of Pecos County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ERIC JEROME OLIVAS, )

) No. 08-05-00171-CR

Appellant, )

) Appeal from the

v. )

) 112th District Court

THE STATE OF TEXAS, )

) of Pecos County, Texas

Appellee. )

) (TC# 2538)

O P I N I O N

Eric Jerome Olivas appeals his conviction for sexual assault of a child. Appellant brings two issues: (1) that the trial court erred by allowing the case to proceed on an indictment allegedly filed after the term of the grand jury had ended; and (2) that the trial court erred by allowing the case to proceed when a concurrent indictment charging the same offense was dismissed with prejudice. We affirm.

In a voluntary statement to Officer Gerald A. Villalobos, Appellant stated that he met the complainant while riding around in a pickup with two friends on or about June 2, 2004. The complainant and a female companion were riding in another car. After parking their car, the two girls joined Appellant and his friends to Acruise around@ in the pickup. At some point, the Appellant said complainant told him she Awanted to have sex with [him] and hook up with [him].@

Appellant and complainant later left together and went to Appellant=s grandfather=s house to Abe alone.@ Appellant and complainant parked in front of the house and began to Akiss and make out.@ Appellant stated that he asked complainant Aif she wanted to have sex.@ Appellant admitted that both he and complainant took off their clothes and had sexual intercourse. Appellant indicated that later that evening, complainant performed oral sex on him until he told her to stop. Appellant then took the complainant and her companion home.

Appellant was subsequently indicted on two counts of sexual assault of a child. The State filed a motion to dismiss the indictment in cause number 2528 indicating that the case had been re-indicted under cause number 2538. Pursuant to the State=s request, the trial court signed an order dismissing cause number 2528. Appellant was re-indicted under cause number 2538 on four counts: (1) sexual assault of a child; (2) indecency with a child; and (3) two counts of unlawful restraint. The State eventually abandoned the two counts alleging unlawful restraint.

Prior to trial, Appellant filed a motion to quash and exception to form of the indictment, a motion to dismiss the indictment based on improper jury procedures, and a motion to dismiss the cause due to an alleged dismissal Awith prejudice@ of cause number 2528 as well as Aprosecutorial vindictiveness.@ The trial court granted Appellant a hearing on the motion to quash and exception to form and the motion to dismiss for improper grand jury procedures but ultimately denied both. The trial court also overruled the motion to dismiss the cause based on an alleged dismissal Awith prejudice@ and Aprosecutorial vindictiveness.@

Appellant pleaded not guilty to the charges. A jury found him guilty of sexual assault of a child but not guilty on the count of indecency with a child. Appellant was placed on community supervision for a period of ten years and assessed a fine of $6,000.

In Issue One, Appellant argues that the trial court erred in allowing the case to proceed on an indictment which was file stamped by the clerk on November 1, 2004, because that date was after the expiration of the July 2004 term of the grand jury.[1] We disagree. It is undisputed that the file stamp on the indictment read November 1, 2004. However, it is also undisputed that the grand jury returned indictments to the district clerk prior to the date the indictments were file stamped. An indictment is properly presented when it has been acted on by the grand jury and received by the court. Tex.Code Crim.Proc.Ann. ' 12.06 (Vernon 2005). Further, the indictment may be delivered to either the judge or the clerk of the court. Tex.Code Crim.Proc.Ann. ' 20.21 (Vernon 2005).

The date file marked on the indictment is not controlling and Appellant directs our attention to no case law which would indicate otherwise. The rule in criminal cases is the same as in civil cases, that is, documents are deemed Afiled@ when they are actually left with the clerk, not when they are file marked. See Williams v. State, 767 S.W.2d 868, 871-72 (Tex.App.--Dallas 1989, pet. ref=d); see also Todd v. State, 911 S.W.2d 807, 811 (Tex.App. El Paso 1995, no pet.), citing Queen v. State, 701 S.W.2d 314, 315 16 (Tex.App. Austin 1985, pet. ref=d.)(stating information properly presented when delivered to the district clerks office).

At a hearing on the motion to quash and exception to form of the indictment and the motion to dismiss the indictment for improper jury procedures, the State called three witness to testify about the procedures of the District Clerk=s Office in Pecos County. The first witness, Deputy District Clerk Lori Diebitsch, testified that the grand jury actually met the week before November 1, 2004, around the 27th or 28th of October, 2004. Further, she testified that indictments are not complete when they are given to the clerk. She stated they are only complete after the bonds had been set. She testified that after the bonds are set, the indictments are file stamped and assigned numbers. She stated that the indictments were not file stamped until after the bond was added because once a document is file stamped, it could not be altered.

The State then called Pam Rubio who worked at the District Attorney=s office. Ms. Rubio=s responsibilities included working with the grand juries that met for the 112th Judicial District. She testified that she was responsible for sending out notices to all of the law enforcement agencies who were involved in a particular case. She stated that she sent out a letter setting up witnesses for the October grand jury on October 13, 2004. She also stated that the letter indicated to the witnesses that the grand jury would meet on Wednesday, October 27, and that Appellant was one of the defendants set by the letter.

The last witness called by the State was Lisa Villarreal, the elected District Clerk for Pecos County. She testified that she was personally aware that the grand jury met on October 27, 2004, because she was the one who accepted the indictments after they were done. She stated that she always goes into the room and asks whether there were any unauthorized persons in the room during deliberations and if there were at least nine affirmative votes. She testified that she prepared the minutes of the court which reflected on what day the grand jury met and which indictments were returned. The State introduced the minutes into evidence. In addition, she stated that Appellant was listed in the minutes and that his indictment was returned in cause number 2538.

It is clear that the indictment in this case was delivered to the district clerk prior to the file mark of November 1, 2004. We conclude that the indictment in cause number 2538 was properly returned prior to the end of the term of the grand jury. Issue One is therefore overruled.

In Issue Two, Appellant argues that the trial court erred in allowing the case to proceed on the indictment in cause number 2538 when the indictment in cause number 2528 charging the same offense had been dismissed with prejudice upon the motion of the State.[2] Appellant bases his argument primarily on the motion to dismiss filed by the State. The motion states:

NOW COMES the State of Texas by and through her Attorney, and respectfully requests the Court to dismiss the above entitled and numbered criminal action in which the defendant is charged with the offense of Sexual Assault of a Child, for the reason:

. . .

this case has been re-indicted under Cause No. 2538

WHEREFORE, it is prayed that the above entitled and numbered cause be dismissed with prejudice.

Appellant argues that because the trial court granted the motion of the State to dismiss with prejudice, it was barred from prosecuting Appellant under indictment number 2538. Again, we must disagree.

For a dismissal to operate as a bar to subsequent indictment and prosecution, the dismissal order of the trial court must specifically state that the dismissal is Awith prejudice.@ See Hughes v. State, 16 S.W.3d 429, 431 (Tex.App. -Waco 2000, no pet.). In this case, the order of the trial court is as follows:

The foregoing motion having been presented to me on this the 12th day of November, 2004, and the same having been considered, it is, therefore, ORDERED, ADJUDGED and DECREED that said above entitled and numbered cause be and the same is hereby dismissed.

Here the order of the trial court did not incorporate the motion of the State, nor did it indicate in any way that it was granting the motion of the State. Rather, the order indicated that after considering the motion, the court was ordering that cause number 2528 be dismissed.[3] Because the order of the trial court did not indicate that the cause was dismissed Awith prejudice,@ the State was not barred from proceeding under cause number 2538. Issue Two is therefore overruled.

Accordingly, we affirm the trial court=s judgment.

August 24, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Appellant=s AMotion To Quash And Exception To Form Of Indictment@ as well as a AMotion To Dismiss Indictment For Improper Grand Jury Procedures@ filed in the trial court alleged the same grounds as Issue One.

[2] Appellant filed a Amotion to dismiss@ based on the same argument with the trial court.

[3] We decline to read into the order of the trial court. To go behind the order and consider the court=s intent by inserting words which were not originally in the order as signed would, we think, establish a dangerous precedent.