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On September 13, 2016, the State indicted West for three counts of knowingly possessing

or attempting to possess a controlled substance, to-wit: tramadol, by misrepresentation, fraud,

forgery, deception, or subterfuge, on or about the dates of January 21, 2015, April 2, 2015, and

June 5, 2015, respectively, for each count alleged (the first indictment). Thereafter, the State reindicted West wherein it changed the controlled substance to oxycodone (the second indictment)

and, for this reason, dismissed the first indictment pursuant to a motion to dismiss granted by the

trial court on June 13, 2018. But the second indictment was later dismissed pursuant to a motion

to quash due to the State’s failure to also include a tolling paragraph. Thereafter, the State again

re-indicted West on June 26, 2018, for three counts of knowingly possessing or attempting to

possess a controlled substance, to-wit: oxycodone, by misrepresentation, fraud, forgery, deception,

or subterfuge, on the same dates as alleged in the first indictment, except that as compared to the

second indictment, the third indictment included identical tolling paragraphs to each count (the

third indictment).

Again, West filed a motion to quash the third indictment. In his motion, West contended

that the third indictment was barred by the statute of limitations for the charged offense and that

the tolling rules did not apply because the first and third indictments did not allege “the same

conduct, act or transaction.” After a hearing on the motion—at which both parties argued

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competing applications of Hernandez v. State to the question of whether the first indictment tolled

the limitations period for the third indictment—the trial court granted West’s motion to quash.

The State then timely filed its notice of appeal.

DISCUSSION

In its sole issue on appeal, the State argues that the trial court erred in granting the motion

to quash the third indictment. The State asserts that the limitations period was tolled due to the

pendency of the original indictment because both indictments alleged the same conduct, same act,

or same transaction such that West was on notice from the original indictment as to the substance

of the third indictment. West argues to the contrary, that is, that the limitations period could not

have been tolled here because the indictments did not allege the same conduct, act, or transaction,

and thereby failed to afford him adequate notice to perform an appropriate investigation that would

be necessary to preserve essential facts and witnesses for his defense against the newer indictment.

Standard of Review

Whether an indictment is barred by the statute of limitations is a question of law subject to

de novo review. See Martinez v. State, 527 S.W.3d 310, 322 (Tex. App.—Corpus Christi 2017,

pet. ref’d); Brice v. State, No. 14-13-00935-CR, 2015 WL 545557, at *1 (Tex. App.—Houston

[14th Dist.] Feb. 10, 2015, no pet.) (mem. op., not designated for publication).

Applicable Law

The Statute of Limitations and Tolling

The first indictment charged West with third-degree violations of Texas Health and Safety

Code section 481.129. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.129(a)(5)(A), (d)(2)

(providing that the offense of knowingly possessing or attempting to possess a controlled substance

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by misrepresentation, fraud, forgery, deception, or subterfuge, is a third-degree felony if the

controlled substance is listed in Schedule III or IV); TEX. HEALTH & SAFETY CODE ANN. §§

481.002(3), 481.032(a) (providing that the commissioner of state health services shall establish

and modify the Schedules of controlled substances); Schedules of Controlled Substances, 44 TEX.

REG. 2514, 2524 (2019) (designating tramadol as a Schedule IV controlled substance). The third

indictment charged West with second-degree felony violations of the same statute. See TEX.

HEALTH & SAFETY CODE ANN. §§ 481.129(a)(5)(A), (d)(1) (providing that the offense of

knowingly possessing or attempting to possess a controlled substance by misrepresentation, fraud,

forgery, deception, or subterfuge, is a second-degree felony if the controlled substance is listed in

Schedule I or II); TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(3), 481.032(a); Schedules of

Controlled Substances, 44 TEX. REG. 2514, 2519 (2019) (designating oxycodone as a Schedule II

controlled substance). The statute of limitations for both sets of these violations is three years.

TEX. CODE CRIM. PROC. ANN. art. 12.01(8).

However, 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). The term “during the pendency,”

means the period 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. TEX. CODE CRIM. PROC. ANN. art. 12.05(c).

Hernandez’s “Same Conduct, Same Act, or Same Transaction” Rule

In Hernandez v. State, the Court of Criminal Appeals announced the rule that a prior

indictment tolls the statute of limitations under article 12.05(b) of the Code of Criminal Procedure

for a subsequent indictment when both indictments allege “the same conduct, same act, or same

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transaction.” 127 S.W.3d at 774. In Hernandez, the Court addressed a situation where the

defendant was first indicted for possession of 4 to 400 grams of amphetamine committed on July

19, 1997, and subsequently indicted for possession of 4 to 200 grams of methamphetamine

committed on the same day. Id. at 769, 774. In considering whether the prior indictment could

toll the limitations period for the subsequent indictment, the Court observed that allowing a prior

indictment to toll the statute of limitations would not defeat the purposes of a limitations period if

a prior indictment gave adequate notice of the substance of a subsequent indictment. Id. at 772.

The Court reasoned that a defendant can preserve those facts that are essential to his defense if he

has adequate notice of a charge. Id. Although the Court recited the underlying facts of the offense

committed by the defendant in its case, the Court restricted its brief analysis to the face of the

indictments in reasoning as follows: “Both charges rest on essentially the same proof: the appellant

possessed a controlled substance. Although the proof involved in identifying the drug would be

slightly different, every other element would rest on the same proof.” See id. at 774. Ultimately,

Hernandez held that the prior and subsequent indictments alleged the same conduct and that article

12.05(b) tolled the limitations period during the pendency of the prior indictment. Id. at 774.

The Court of Criminal Appeals revisited its “same conduct, same act, or same transaction”

rule in a 5-to-4 opinion, with four Judges dissenting, in Marks v. State, 560 S.W.3d 169, 169-70

(Tex. Crim. App. 2018). The Marks Court addressed a situation where the defendant was first

indicted in three cases occurring on three different dates for acting as a guard company, by

providing security services, without a proper business license and where the indictment was

subsequently amended to charge the defendant for accepting employment as a security officer to

carry a firearm without a security officer commission on the same dates as previously alleged. Id.

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at 170. In holding that the indictments did not comply with the rule set out in Hernandez, the

Court appeared to reason that the gravamen of the law-offending conduct for each of the charged

offenses would not necessarily intertwine with the gravamen of the other during the commission

of either charged offenses—even if the offenses involved some of the same underlying facts—as

the Court illustrated as follows:

Under the amended indictments, Appellant did not even need to actually provide

security services–the act alleged in the original indictments. And to provide security

services under the original indictments, Appellant need not have carried a firearm

or entered into any agreement to do so.

There are some common requirements for obtaining a security services

license and a security office commission, but a security officer commission, which

allows the carrying of a firearm, involves some extra requirements. Suppose a

defendant did have a license to be in the guard company business and was facing

one of these original indictments accusing him of not having such a license. What

would make him think that the State was accusing him of (or that he needed to

defend against) the allegation that he carried or agreed to carry a firearm without

having been personally commissioned to do so?

See id. at 171 [internal footnotes omitted]. The Court also noted that the initial indictment’s lack

of any additional, specific facts in its allegations and its use of the “on or about” language made it

less clear that the same transaction was being alleged in the amended indictment. Id. at 171.

Ultimately, the Court held that the initial indictment did not toll the limitations period for the

offenses alleged in the subsequently amended indictment. Id.

In applying the “same conduct, same act, or same transaction” rule from Hernandez, our

sister courts have observed that the touchstone of the analysis is notice, that is, whether the original

indictment fairly alerted the defendant to the subsequent charges against him and the time period

at issue. See Lenox v. State, Nos. 05-10-00618-CR, 05-10-00619-CR, 2011 WL 3480973, at *9

(Tex. App.—Dallas Aug. 9, 2011, pet. ref’d) (not designated for publication); Ex parte Brooks,

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No. 12-06-00378-CR, 2011 WL 165446, at *5 (Tex. App.—Tyler Jan. 19, 2011, pet. ref’d) (mem.

op., not designated for publication). And our sister courts have held that fair notice is given if the

prior and subsequent indictments share the same factual basis. See Ahmad v. State, 295 S.W.3d

731, 741 (Tex. App.—Fort Worth 2009, pet. ref’d) (“Two indictments arise from the same conduct

if they arise from the same underlying event or incident.”); Lenox, 2011 WL 3480973, at *9-10

(equating “same conduct, act, or transaction” to “same factual basis”); Ex parte Brooks, 2011 WL

165446, at *6 (holding that the defendant was on notice to preserve any facts or defenses available

to her for any thefts she committed against the individual named in the indictment where the two

indictments shared a factual basis).

Application

In this instance, the State’s argument on appeal boils down to this: “Just as in Hernandez,

the original and third indictments both rested on essentially the same proof – that [West] possessed

or attempted to possess a controlled substance. The only difference was the proof in identifying

the type of controlled substance, and this difference did not concern the Hernandez Court.” West

argues that Hernandez is distinguishable for multiple reasons: “since the [first indictment] alleged

[an] attempt through many possible means, since it mirrored the statutory language and used ‘on

or about’ dates, the particular controlled substance alleged in the [first indictment] is the only thing

that provided adequate notice to [West]. A change to the pled controlled substance constitutes a

fundamental change to the allegations.”

Like West, we observe that the charged offenses within the indictments at issue here differ

from those in Hernandez, first, because they allege not just possession but attempted possession

through misrepresentation, fraud, forgery, deception, or subterfuge, and, second, because they

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allege three separate on or about dates for commission of the offenses. Compare Hernandez, 127

S.W.3d at 769, 774 (addressing two indictments alleging only a possessory offense on a singular

date). These differences could theoretically allow for greater permutations in the combination of

facts constituting the particular actions committed by West that the State would then assert would

show that he had run afoul of the law. Aside from those concerns, West also argued in the trial

court that the increase in the penalty range for the possession or attempted possession of oxycodone

as compared to tramadol was a relevant factor in assessing whether the two indictments alleged

the same conduct. But we dispatch with that separate concern because the tolling test is based on

the factual bases of the allegations, rather than any increase in the penalty range, and an increase

in the penalty range through a subsequent indictment is not the type of amendment that

impermissibly broadens or substantially amends the original indictment. See Lenox, 2011 WL

3480973, at *9-10; Ex parte Brooks, 2011 WL 165446, at *5-6.

Ultimately, we are unable to agree with West that these differences effectively preclude

the first indictment here from giving sufficient notice to alert him to the subsequent charges in the

third indictment. This case is too closely analogous to Hernandez for us to hold anything other

than that the first and third indictments in this case alleged the same conduct. Even if West

theoretically could have become liable under the third indictment for three entirely new and

discrete actions previously ignored by the State, the first indictment still gave West sufficient

notice that “fairly alerted” him that he could be held accountable for a specific umbrella of conduct

in order for him to contemplate preserving facts that might be essential to his defense. See Lenox,

2011 WL 3480973, at *9; Hernandez, 127 S.W.3d at 772 (cases observing that the touchstone of

notice considers whether the original indictment fairly alerted the defendant to the subsequent

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charges against him and the time period at issue); see also Ex parte Brooks, 2011 WL 165446, at

*4 (“[T]he difference between these indictments is that the first indictment charged Appellant with

one of any of the thefts that she may have committed from the named individual (with the upward

bound of $100,000), and the second indictment charged her with every theft she committed from

that person pursuant to a scheme or continuing course of conduct. Accordingly, Appellant was on

notice that she could be held accountable for conduct, specifically any thefts she committed . . .

.”).

Essentially, we believe that along the spectrum of cases between Hernandez and Marks,

our situation here more closely resembles that of Hernandez. Relying heavily on Marks, West

argues that the focus is on “whether the defense counsel’s investigation into the allegations of the

initial indictment – guided by the defense theory to those allegations – would necessarily translate

into defenses to the allegations of the subsequent indictment.” However, in proposing that Marks

announced a rule requiring that a prior and subsequent indictment must necessarily require defense

counsel to prepare the same defense, is a reading of Marks that stretches too far. We perceive that

the reasoning behind the result in Marks may appear to be problematic in application to other cases,

as evidenced by the four dissenting Judges in that case. But we think the illustration used by the

Court in Marks to explain its rationale confined the application of its case to those cases in which

the gravamen of law-offending conduct for the charges within a prior and subsequent indictment

could never intertwine. In Marks, the gravamen of law-offending conduct for the charges under

the first indictment amounted to an allegation of providing unlicensed security services, whereas

the gravamen under the second indictment amounted to an allegation of carrying a firearm without

the proper commission. See Marks, 560 S.W.3d at 171. Here, in contrast, the gravamen of law-

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offending conduct for the charges in the first and third indictments are the same: possession of a

controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge. We thus find

Marks distinguishable from the present case.

Therefore, we hold that the first and third indictments here alleged the same conduct

because the allegations shared the same factual basis and thereby “fairly alerted” West to the need

to preserve any essential defensive facts where: (1) the prior indictment alleged three counts of

knowingly possessing or attempting to possess a controlled substance, to-wit: tramadol, by

misrepresentation, fraud, forgery, deception, or subterfuge, on or about the dates of January 21,

2015, April 2, 2015, and June 5, 2015, for each count, respectively; and (2) the subsequent

indictment charged the same conduct but merely changed the controlled substance from tramadol

to oxycodone. See Hernandez, 127 S.W.3d at 769, 774; see also, e.g., Ex parte Brooks, 2011 WL

165446, at *1, 3-4, 6 (holding that the two indictments at issue covered the same conduct, act, or

transaction and thereby shared a factual basis that put the defendant on sufficient notice to preserve

any facts or defenses available to her where the first indictment alleged a theft in the amount of

more than $20,000, but less than $100,000, between July 1, 1998, and April 1, 2000, from a single

individual and where the second indictment alleged a theft, or thefts committed as part of a

continuing course of conduct, with an aggregate amount of between $20,000, and $100,000, from

the same individual and within a timeframe two months narrower); Ahmad, 295 S.W.3d at 742

(holding that the first indictment alleging that the defendant buried a training bomb on January 26,

2002, arose from the same conduct as the second indictment alleging that the defendant made a

false report about a bomb and possessed a hoax bomb on the same date because “the offenses all

arose from the same conduct: Appellant’s possession of and report about some kind of bomb–

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hoax, training, or unspecified–on January 26, 2002.”); compare Ex parte Martin, 159 S.W.3d 262,

265 (Tex. App.—Beaumont 2005, pet. ref’d) (holding that “the factual basis is clearly not the same

for the two indictments” and thereby did not toll the limitations period where the first indictment

charged the defendant with aggravated robbery committed sometime before September 30, 1998,

and where the second indictment charged the defendant with bail jumping committed on May 22,

2001, based upon the defendant’s failure to appear for his trial on May 21, 2001, for the aggravated

robbery charge).

Based on our holding that the first and third indictments alleged the same conduct as

established by the reasoning of Hernandez, we conclude that the statute of limitations was tolled

during the pendency of the first indictment from the date of its filing on September 13, 2016, to

the date of its dismissal on June 13, 2018. See TEX. CODE CRIM. PROC. ANN. art. 12.05(b), (c);

Hernandez, 127 S.W.3d at 774. Excluding this period during which the statute of limitations was

tolled, we determine that approximately one year and ten months had expired from the time of

count 1’s alleged date of January 21, 2015, to the date the State filed its third indictment on June

26, 2018, that approximately one year and seven months had expired from the time of count 2’s

alleged date of April 2, 2015 to the date the State filed the third indictment, and that approximately

one year and five months had expired from the time of count 3’s alleged date of June 5, 2015, to

the date the State filed the third indictment. Thus, we conclude that all three counts of the third

indictment fell well within the three-year statute of limitations for the charged offenses. See TEX.

CODE CRIM. PROC. ANN. art. 12.01(8); see also TEX. HEALTH & SAFETY CODE ANN. §§

481.129(a)(5)(A), (d)(1), 481.002(3), 481.032(a); 44 TEX. REG. 2519 (2019).

Because the third indictment was timely filed based on the first indictment’s tolling of the

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limitations period, we conclude that the trial court erred in granting West’s motion to quash the

third indictment on the basis that the statute of limitations had expired. We therefore sustain the

State’s sole issue presented for review.

Having sustained the State’s sole issue, we reverse the judgment of the trial court, set asidethe trial court’s order granting the motion to quash, and remand the case for further proceedings.