Johnson, Noah Michael

6/25/2026

PD-0041-26

The State’s Grounds

  1. “Where the original indictment alleging Appellant Attempted to Murder his girlfriend by ‘hitting her and holding her underwater’ put him on notice that he might have to defend against Family Violence Assault based on Appellant’s ‘hitting her and holding her underwater,’ did the Third Court err in failing to recognize the original indictment tolled the statute of limitations for the latter charges—which were based on the exact same underlying conduct?”
  2. “Should this Court grant the petition for review and reverse, or alternatively, summarily reverse the Third Court’s Johnson opinion and remand for the Third Court to apply and follow this Court’s decision in Hernandez, Marks, and West?”

On the Court’s Own Motion

“Whether the Court’s opinions in Hernandez v. State, 127 S.W.3d 768  (Tex. Crim. App. 2004), Marks v. State, 560 S.W.3d 169 (Tex. Crim. App. 2018), and/or State v. West, 632 S.W.3d 908 (Tex. Crim. App. 2021), should be reconsidered.” 

Johnson and his girlfriend were inner-tubing when they started fighting. Johnson said he would kill her and held her under water until a friend intervened. Johnson was initially indicted for attempted murder. After limitations ran, the State reindicted him and added charges of aggravated assault, family-violence assault with a prior, and family-violence occlusion assault. Johnson moved to dismiss the new charges as time barred. The State argued that, under Tex. Code Crim. Proc. art. 12.05(b), the first indictment tolled limitations, and the trial court agreed. Johnson was convicted of the family-violence offenses.

Johnson renewed the limitations issue on appeal, and the court of appeals agreed, reversing his convictions. The court cited Hernandez, which interprets Art. 12.05(b) to require both indictments allege the same conduct, act, or transaction—enough to put the defendant on adequate notice of the charge’s substance and let him preserve facts and witnesses for his defense. In both Marks and West, the first indictment didn’t toll limitations because a defense to it wouldn’t necessarily have defended against the later indictment. The court of appeals found the same was true here, since Johnson’s second indictment alleged different mental states and added new allegations of injury, a prior conviction, and a dating relationship.

The State argues that the court of appeals read Hernandez’s requirements so narrowly that no attempted-offense indictment could ever toll limitations for a completed offense. Under Marks and West, it contends, a first indictment tolls limitations if it refers to the same conduct or event, even when the later indictment charges a different offense with different elements. Here, both indictments allege the same conduct: punching the victim in the head and holding her underwater (or causing water to block her nose or mouth). The State argues that notice of the assault itself is all that’s required.