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MARKS, WILLIAM

PD-0549-17, PD-0550-17, & PD-0551-17 09/13/2017

1.  “Whether the court of appeals failed to apply the tolling provisions of Texas Code of Criminal Procedure article 12.05(b), in conflict with this Court’s decision in Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004).”

2.  “Whether the court of appeals’ harmless error analysis under Texas Rules of Appellate Procedure 44.2(b) properly weighed the factors in this case.”

William Marks violated the Private Security Act by working as a security guard at Walmart on three occasions. The State’s original indictments alleged that on those three dates, he acted as a security guard company without having a license. Later, the State amended its indictments—over Marks’s objection—and alleged that he accepted employment as an armed security officer without having a commission to carry a gun. He was tried and found guilty two months later.

 On appeal, Marks complained that the trial court violated Article 28.10 by allowing an amendment over his objection that charged a different statutory offense. The court of appeals agreed and found the error harmed Marks’s substantial rights. The State argued any error was harmless because it could have dismissed and refiled the cases if amendment was not permitted. The court of appeals held that limitations would have barred the newly filed cases because, under Code of Criminal Procedure Article 12.05, the original indictments would not toll the time for filing new statutory offenses in different cases.

 The State argues that all the indictments were based on the same three transactions on the same three dates and that under Hernandez, the original indictments toll the limitations period because they allege the same conduct, act, or transaction. It contends the court of appeals applied a “same statute” analysis similar to that in Article 28.10 to the tolling provisions in Article 12.05, conflating the two provisions. The State also argues that adequate notice, time to prepare for trial on the amended indictments, and the fact that Marks’s defense applied equally to the amended charges all should have factored into the harm analysis.

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