“In finding that the original indictment that charged three counts of possession or attempted possession of a controlled substance, to wit: tramadol (by misrepresentation, fraud, forgery, deception or subterfuge, on or about three separate dates), alleged the same conduct, act or transaction as a subsequent indictment that charged the possession or attempted possession of oxycodone, the Court of Appeals decision conflicts with decisions of the Court of Criminal Appeals and the United States Supreme Court, Tex. R. App, P. 66.3(a)(c).”
The State originally indicted West for fraudulent possession of Tramadol (a third-degree felony). After the statute of limitations expired, the State re-indicted West. The new indictment was identical to the first except for the controlled substance, Oxycodone (a second-degree felony). It also alleged that the first indictment tolled the limitations period. West filed a motion to quash the new indictment and argued that Tex. Code Crim. Proc. art. 12.05(b)’s tolling provision for pendency of an indictment did not apply because the new indictment did not allege “the same conduct, same act or same transaction” as required in Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004). The trial court agreed and quashed the new indictment.
The State appealed. The court of appeals reversed. It held that the first indictment tolled limitations because it shared the same factual basis as the subsequent one and thereby fairly alerted West to the need to preserve any essential defensive facts. Hernandez held that an indictment for possession of amphetamine tolled limitations for possession of methamphetamine on the same day, and the court of appeals found Hernandez “too closely analogous” not to follow it.
West relies on the more recent case, Marks v. State, 560 S.W.3d 169 (Tex. Crim. App. 2018), which held that an indictment for acting as a security guard company without a license did not toll limitations for accepting employment as an armed security guard without a commission. West argues that the core action of both indictments must be similar enough for the defense to preserve the facts and witnesses central to the later charge. He argues that the defense could have prepared a factual defense limited only to Tramadol and been unfairly unprepared to defend against Oxycodone. Permitting tolling would prevent defense counsel from conducting an adequate investigation into the facts necessary for effective assistance of counsel.