THE STATE OF TEXAS v. MICHAEL KENT PLAMBECK--Appeal from 332nd District Court of Hidalgo County

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NUMBER 13-02-492-CR and 13-02-493-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant,


v.


MICHAEL KENT PLAMBECK, Appellee.

On appeal from the 332nd District Court of Hidalgo County, Texas.

OPINION ON REMAND


Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Garza

This case is before us on remand from the Texas Court of Criminal Appeals. See State v. Plambeck, 182 S.W.3d 365 (Tex. Crim. App. 2005). Appellee, Michael Kent Plambeck, was charged by three sets of indictments with seven counts of barratry, see Tex. Pen. Code Ann. 38.12(a), (b) (Vernon 2003), and two counts of criminal conspiracy to commit barratry, See Tex. Pen. Code Ann. 15.02 (Vernon 2003). The first set of indictments was obtained from grand jury proceedings in which a Texas Ranger was allowed to question witnesses extensively, in violation of Texas Code of Criminal Procedure article 20.04. See Tex. Code Crim. Proc. Ann. art. 20.04 (Vernon 2005) (providing that "[n]o person other than the attorney representing the State or a grand juror may question a witness before the grand jury."). (1) These indictments were voluntarily dismissed by the State after it obtained a second set of indictments for the alleged crimes. During the grand jury proceedings leading to the second set of indictments, however, the prosecutor read testimony given by two witnesses in response to questioning by the Texas Ranger during proceedings leading to the first set of indictments. The State voluntarily dismissed the second set of indictments after obtaining a third set of indictments. The third set of indictments described the earlier indictments for purposes of tolling the statute of limitations.

Plambeck filed a motion to dismiss the third set of indictments and a pretrial application for writ of habeas corpus. In the motion to dismiss, Plambeck contended that the third set of indictments came "after the State voluntarily dismissed a previous indictment for improper Grand Jury procedures" involving the questioning of witnesses by a person other than the State's attorney. The motion alleged the third indictment was obtained with the "presentation of the prior tainted grand jury testimony to a new grand jury." The habeas application alleged that the prosecution for the offenses outlined in the third set of indictments was barred by limitations. The trial court granted relief on the habeas application and granted the motion to dismiss. This appeal ensued.

The State challenges the trial court's ruling by two issues. In its first issue, the State argues that the trial court erred in granting Plambeck's pretrial writ of habeas corpus on limitations grounds because the limitations period was tolled by the first and second sets of indictments. In its second issue, the State argues that the trial court erred in dismissing the third set of indictments on the grounds of improper grand jury proceedings because Plambeck (1) failed to meet his burden of proving that the State's error in allowing an investigator to question grand jury witnesses violated some constitutional right, and (2) failed to meet his burden of proving that dismissal of the indictments was necessary to cure the error. On remand, we reverse and remand to the trial court.

Plambeck, a chiropractor, was charged with barratry and conspiracy to commit barratry based on allegations that he and his co-defendant, attorney Eugene X. Mercier, participated in a scheme to compensate third parties to recruit personal injury lawsuit clients for Mercier, who then referred those clients to Plambeck's chiropractic clinics for evaluation and treatment. (2)

Plambeck was charged by three different grand juries with seven counts of barratry. The three indictments for barratry were charged and dismissed as follows:

Date Action Cause No.


Apr 18, 2000 Indictment CR-0694-00-F


Dec 19, 2001 Indictment CR-3658-01-F


Dec 21, 2001 Dismissal CR-0694-00-F

Apr 30, 2002 Indictment CR-1040-02-F


May 23, 2002 Dismissal CR-3658-01-F


The seven counts alleged the following dates of offenses:


Count One: on or about September 4, 1998;


Count Two: on or about August 14, 1998;


Count Three: on or about March 1, 1998 to on or about December 31, 1998;


Count Four: on or about February 28, 1998;


Count Five: on or about August 21, 1998;


Count Six: on or about August 24, 1998; and


Count Seven: on or about August 25, 1998.


The three indictments for the two counts of conspiracy to commit barratry were charged and dismissed as follows:

Date Action Cause No.


Mar 21, 2000 Indictment CR-0474-00-F


Dec 19, 2001 Indictment CR-3647-01-F


Dec 21, 2001 Dismissal CR-0474-00-F

April 30, 2002 Indictment CR-1029-02-F


May 23, 2002 Dismissal CR-3647-01-F


Both counts alleged offenses on September 30, 1997.


Plambeck filed a Pre-Trial Application for Writ of Habeas Corpus Seeking Release Because of Expiration of Limitation Period and a Motion to Dismiss Indictment for Improper Grand Jury Proceedings with respect to the third set of indictments. A hearing was held on August 12, 2002, where the following relevant facts were developed.

In 1996, the Texas Rangers began investigating a complaint about "chiropractors and telemarketers in this area." The lead investigator, Israel Pacheco, learned that "runners" were being paid money for patients they referred to chiropractic clinics. Pacheco's investigation ultimately led him to Plambeck when he discovered that Charlie Mora, a "telemarketer" and "the key runner" for Plambeck, was "going out and paying people at hospitals, police departments and stuff to give them names of clients or patients that would always wind up in [Plambeck's] clinics, and always wound up represented by Gene Mercier."

The grand jury conducted its investigation over a six to nine month period. This investigation resulted in the issuance of the first set of indictments. Pacheco testified before the grand jury and attended the majority of the proceedings. Pacheco was permitted to ask questions of every witness who appeared before the grand jury. According to the State, it is possible that Pacheco asked Mora "more than a hundred questions" because, as Pacheco testified, Mora was,

[A] very unique individual where if I asked him that many questions, it would have had to do with when he's testifying to the grand jurors and answering questions, I have knowledge of things, of interviews I conducted and I just wanted to make sure that whatever he told the grand jury then they understood correctly. In no way did I ask every witness that was there a hundred questions each time they testified.

Before the grand jury, Mora testified that he used to work for Plambeck and was "involved in referring cases to [Plambeck's] clinics and referring cases to Gene Mercier." During the grand jury proceedings that resulted in the first set of indictments, Pacheco asked Mora "a lot" of questions, "over a hundred." Mora also testified before the second grand jury and, after having portions of his prior testimony read to the grand jury, swore that his testimony before the first grand jury was "true and correct." There was no live testimony before the grand jury that returned the third set of indictments. Rather, the State read portions of Mora's testimony from the first grand jury proceedings to the grand jury.

The first set of indictments were dismissed by the State due to a mistake in wording. The State dismissed the second set of indictments after an informal "meeting" with the court where the issue of Pacheco "testifying before the - well, participating in the grand jury questioning" was discussed and the State "agreed to resubmit to the grand jury." The second set of indictments was also dismissed so that tolling language could be included in the third set of indictments. Then, on August, 22, 2002, the trial court dismissed the third set of indictments, allegedly without the State's consent.

Because our determination of the State's second issue determines the outcome of the first issue in part, we address the State's issues out of order.

I. Grand Jury Proceedings

In its second issue, the State argues that the trial court erred in dismissing the third set of indictments on the grounds of improper grand jury proceedings because Plambeck (1) failed to meet his burden of proving that the State's error in allowing an investigator to question grand jury witnesses violated some constitutional right, and (2) failed to meet his burden of proving that dismissal of the indictments was necessary to cure the error.

In his Motion to Dismiss Indictment for Improper Grand Jury Procedures, Plambeck alleged the State's violation of article 20.04 of the Texas Code of Criminal Procedure, specifically in allowing Pacheco to question Mora before the grand jury, amounted to a denial of his due process rights under the United States Constitution and the Texas Constitution. See Tex. Code Crim. Proc. Ann. art. 20.04; see also U.S. CONST. amend. V; see TEX. CONST. art. I, 10; but see Smith v. State, 36 S.W.3d 134, 136 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (noting that "[n]either the United States nor Texas Constitutions set requirements on how grand jury proceedings are to be conducted, they merely assure that a person accused of a capital or infamous crime has the right to a presentment or indictment of a grand jury. Only when the action of the State amounts to a complete abrogation of the accused's right to an indictment of a grand jury are constitutional guarantees implicated."). He further alleged that the third set of indictments was "tainted," and therefore defective, due to Pacheco's involvement in the first grand jury proceeding.

There is no general authority, written or unwritten, inherent or implied, permitting a trial court to dismiss a case without the prosecutor's consent. State v. Johnson, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991). However, a trial court has the power to dismiss a case without the State's consent in certain circumstances, such as when a defendant has been denied a speedy trial, when there is a defect in the charging instrument, or, pursuant to article 32.01, when a defendant is detained and no charging instrument is properly presented. Id. The power to dismiss in these circumstances is authorized by common law or statute and does not give rise to a general right to dismiss. Id. An indictment may also be dismissed without the State's consent for a constitutional violation where dismissal with prejudice is necessary to protect the defendant's constitutional rights. State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 1998).

On appeal, the State contends that Plambeck failed to meet his burden of showing that the improper grand jury proceedings amounted to a violation of some constitutional right. In this regard, the State argues that a violation of article 20.04 of the Texas Code of Criminal Procedure is not a constitutional error, but merely a technical violation subject to harmless error analysis for which appellee failed to adduce any evidence. See Smith, 36 S.W.3d at 136 ("neither the United States nor Texas Constitutions set requirements on how grand jury proceedings are to be conducted"). Further, the State argues that dismissal of the first and second sets of indictments was the appropriate remedy to cure any prejudice from the purported constitutional violation.

The parties agree that the State violated article 20.04 by allowing Pacheco to question witnesses during the grand jury proceedings. This error has been found to be a violation of Texas Rule of Appellate Procedure 44.2(b) and subject to a harm analysis. See Tex. R. App. P. 44.2(b) (providing that for non-constitutional errors, "any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."); Smith, 36 S.W.3d at 136-38; Sanders v. State, 978 S.W.2d 597, 600 (Tex. App.-Tyler 1997, pet. dism'd). We review this error de novo. State v. McCoy, 64 S.W.3d 90, 91 (Tex. App.-Austin 2001, no pet.); State v. Sephus, 32 S.W.2d 369, 372 (Tex. App.-Waco 2001, pet. ref'd).

In Smith and in Sanders the questions complained of appeared in the record and could be analyzed in relation to the testimony of other witnesses allowing the courts to "meaningfully gauge or quantify the effect of the error." Smith, 36 S.W.3d at 137; Sanders, 978 S.W.2d at 600. Factors this Court should consider in such an analysis include: (1) the source of the error; (2) the nature of the error; (3) whether or to what extent it was emphasized by the State; (4) the error's probable collateral implications; (5) how much weight a juror would probably place on the error; and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. Smith, 36 S.W.3d at 138 (citing Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989); McGee v. State, 23 S.W.3d 156, 165 (Tex. App.-Houston [14th Dist.] 2000, no pet.)).

Here, the questions asked by Pacheco have not been made part of the record. We cannot determine their relevance or whether the questions were duplicative of those asked by the attorney for the State. Further, Mora's testimony before the trial court was limited to the number of questions asked by Pacheco, not the nature of the questions. While Pacheco's participation in the grand jury proceeding was technically erroneous, we cannot say it resulted in an unfair process or an improper indictment because we cannot "meaningfully gauge or quantify the effect of the error." Id. at 137; Sanders, 978 S.W.2d at 600. Moreover, although the State's conduct in the present case was erroneous, it did not abrogate appellant's right to an indictment of a grand jury; thus, it did not rise to the level of a constitutional violation. See Smith, 36 S.W.3d at 136. Accordingly, the trial court erred in dismissing the indictment on grounds of improper grand jury proceedings. The State's second issue is sustained.

II. Limitations

In its first issue, the State argues that the trial court erred in granting Plambeck's pretrial writ of habeas corpus on limitations grounds because the statute of limitations was tolled by the pendency of the prior indictments charging offenses under the same penal statute. The statute of limitations for both barratry and conspiracy to commit barratry is three years. Tex. Code Crim. Proc. Ann. art. 12.01(6) (Vernon Supp. 2006). "The time during the pendency of an indictment shall not be computed in the period of limitation." Tex. Code Crim. Proc. Ann. art. 12.05(b) (Vernon 2005). "During the pendency" means that period of time beginning with the day the indictment is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason." Id. at 12.05(c).

A. Standard of Review

In general, a trial court's ruling in a habeas proceeding should not be overturned unless there is a clear abuse of discretion by the court. Ex parte Mann, 34 S.W.3d 716, 718 (Tex.App.-Fort Worth 2000, no pet.); Ex parte Ayers, 921 S.W.2d 438, 440 (Tex. App.-Houston [1st Dist.] 1996, no pet.). We are to evaluate whether the court abused its discretion by determining whether the court acted without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). However, "an abuse of discretion review of trial court decisions is not necessarily appropriate in the context of application of law to facts when the decision does not turn on the credibility or demeanor of witnesses." Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Instead an appellate court must conduct a de novo review when "the trial judge is not in an appreciably better position than the reviewing court to make that determination." Guzman, 955 S.W.2d at 87.

The State urges a de novo review because the facts in this case are not in dispute. Plambeck, on the other hand, argues that an abuse of discretion standard is appropriate because the "trial court was in a clearly better position than any appellate court could possibly be to evaluate the credibility and demeanor of the witnesses, and to base its decision to grant appellee's writs on the same." In reviewing the transcript of the May 12 hearing, the only witness called by Plambeck in relation to the statute of limitations motion was the assistant district attorney. (3) The facts to which she testified, namely the filing and dismissal of the various indictments, are not in dispute. Accordingly, the trial court's decision on this motion did not turn on the credibility or demeanor of the witness. We will, therefore, conduct a de novo review. See Guzman, 955 S.W.2d at 87.

B. Availability of Pretrial Habeas Corpus Relief

The State contends that habeas corpus relief is not available to Plambeck because limitations is a defense that must be asserted by filing a motion to dismiss or by requesting a jury instruction. Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998). The Texas Court of Criminal Appeals has long held that when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is generally not available before trial to test the sufficiency of the complaint, information, or indictment. Ex parte Weise, 55 S.W.3d 617, 629 (Tex. Crim. App. 2001). But there are certain exceptions to this rule. Id. One exception is when the applicant alleges that the statute under which he or she is prosecuted is unconstitutional on its face; consequently, there is no valid statute and the charging instrument is void. Id. Another exception is when the pleading, on its face, shows that the offense charged is barred by limitations. Id. Here, Plambeck alleged the latter; hence, relief by habeas corpus is available to him. See id.

C. Sufficiency of Indictments to Toll the Statute of Limitations

The third indictment for the seven counts of barratry alleged offense dates ranging from February 28, 1998 through December 31, 1998. The third indictment for the two counts of conspiracy to commit barratry alleged an offense date of September 30, 1997. The third set of indictments were filed April 30, 2002, clearly outside the three-year statute of limitations. The State argues the statute of limitations were tolled by the pendency of the prior indictments, the first of which were filed well before the three-year statute of limitations expired. In support of its position, the State cites us to Ex parte Slavin, 554 S.W.2d 691, 692-93 (Tex. Crim. App.1977), where the Texas Court of Criminal Appeals held that under article 12.05(b) the time that a defective 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 first indictment. Here, the State alleges the third set of indictments were charged under the same penal statute as the first and second sets of indictments.

Article 12.05 of the Texas Code of Criminal Procedure provides:


(a) The time during which the accused is absent from the state shall not be computed in the period of limitation.

(b) The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.

(c) The term "during the pendency," as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.

Tex. Code Crim. Proc. Ann. art. 12.05.

Plambeck believes prosecution under the third set of indictments is barred because the State failed to allege tolling factors in the indictments in accordance with Cooper v. State, 527 S.W.2d 563, 565 (Tex. Crim. App. 1975). However, this proposition in Cooper was overruled by the Texas Court of Criminal Appeals in Proctor, (4) which created a new procedural scheme dealing with a statute of limitations defense. Proctor, 967 S.W.2d at 844. The statute of limitations defense is forfeited if not asserted at or before the guilt/innocence stage of trial. Id. Before trial, a defendant may assert the statute of limitations defense by filing a motion to dismiss under article 27.08(2) of the Texas Code of Criminal Procedure. Id. At trial, the defendant may assert the defense by requesting a jury instruction on limitations if there is some evidence before the jury, from any source, that the prosecution is limitations-barred. Id. If there is some such evidence and the defendant requests a jury instruction on the limitations defense, then the State must prove beyond a reasonable doubt that the prosecution is not limitations-barred. Tex. Pen. Code Ann. 2.03 (Vernon 2003). Finally, the defendant may, either before trial or at trial, waive the statute of limitations defense. Id. Accordingly, the State was not required to plead tolling factors in the indictments.

Plambeck also alleges that the first and second sets of indictments were defective because of Pacheco's participation in the grand jury proceedings and were, therefore, insufficient to toll the statute of limitations. We have already determined that we are unable to evaluate the propriety of Pacheco's involvement. Likewise, we are not able to conclude that the first and second sets of indictments were defective for this reason. Plambeck also argues, without citing to authority, that because the third set of indictments alleged different dates, different theories of the crime, and different language than the first and second sets of indictments, the requisite "pendency" of the indictment was eliminated for limitations purposes. (5) For the reasons stated below, we conclude Plambeck's contentions are without merit.

As pointed out by the State, in Ex parte Slavin, the Texas Court of Criminal Appeals held that, even though an initial indictment is defective, the statute of limitations is tolled during the pendency of the initial indictment when the second indictment is brought under the same penal statute. See Ex parte Slavin, 554 S.W.2d at 692-93; see also Tex. Code Crim. Proc. Ann. art. 12.05(b). While we express no opinion as to whether the first and second sets of indictments were defective, we conclude that because Plambeck was charged under the same penal statute each time and because the indictments alleged the same conduct, the statute of limitations was tolled by the first set of indictments. See Ex parte Slavin, 554 S.W.2d at 692-93; see also Hernandez v. State, 127 S.W.3d 768, 774 (Tex. Crim. App. 2004) (holding 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."). Accordingly, the State's first issue is sustained.

We reverse the judgment of the trial court and remand for further proceedings.

_______________________

DORI CONTRERAS GARZA,

Justice


Do not publish.

Tex.R.App.P. 47.2(b)

Opinion delivered and filed

this the 14th day of June, 2007.


1. The first "set" of indictments were handed down as follows: April 18, 2000, for the seven counts of barratry, and March 21, 2000, for the two counts of conspiracy to commit barratry.

2. Eugene X. Mercier was tried in a separate proceeding that was appealed to this court. See State v. Mercier, 164 S.W.3d 709 (Tex. App.-Corpus Christi 2005, pet. ref'd).

3. Plambeck asks us to consider the testimony of Mora during the Mercier trial; however, that record is not before us. Further, Mora's testimony at the May 12 hearing was offered for purposes other than the statute of limitations motion.

4. "This procedural scheme will serve adequately to effectuate the purposes of the statute of limitations, while bringing some clarity and simplicity to this area of the law. Anything in our prior decisions to the contrary is overruled." Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998).

5. In count one of CR-1040-02-F, the State added the words "pays" and "gives," when before it was "offer to pay and give," and the words "presented specifically by Michael Kent Plambeck." In count four, the State alleged a new date of February 28, 1998, while changing the theory from "offering to pay and give with the intent to obtain economic benefit" to the theory of financing the barratry. In count five, the State changed the theory to financing the commission of barratry. In count six, a new date of August 24, 1998 for the commission of the alleged crime was alleged.