In 2010 D is charged with communicating through a commercial online service in a sexually explicit manner with a minor under Section 33.021(b) of the Texas Penal Code.
He is convicted in 2011 and put on probation, which he complies with until 2014, when the Texas Court of Criminal Appeals rules that Section 33.021(b) is unconstitutional.
In 2015 D files an application for writ of habeas corpus in the trial court. His case is reopened and the charge is dismissed.
The State charges D under Section 33.021(c) of the Texas Penal Code with soliciting the same minor to meet him, through a commercial online service, with the intent that the minor would engage in sexual contact with him.
The statute of limitations for online solicitation of a minor is the catch-all three years under Texas Code of Criminal Procedure article 12.01(7).1 So at first blush it would appear that the 33.021(c) prosecution is barred by limitations.2
The statute of limitations is tolled during the pendency of an indictment, information, or complaint.3
But there is no charge pending while the defendant is on probation.4
But “during the pendency” begins with the day the charge is filed in a court of competent jurisdiction, and ends with the day the accusation is, by an order of a trial court having jurisdiction, determined to be invalid for any reason.5
But if there was a charge pending, it was not a 33.021(c) charge.6
But the Court of Criminal Appeals has held (in Hernandez, which was the appeal of a drug case) “that the first indictment tolls the statute of limitations if both indictments allege the same conduct, same act, or same transaction, even if the offenses charged do not fall within the same statute.”7
So the question comes down to whether both indictments allege the same conduct, same act, or same transaction. That’s a really interesting question to this law geek.
In Hernandez the defendant was charged in both indictments with the possession of the same drugs; the first indictment charged it as amphetamine, and the second charged the same substance as methamphetamine.
Since you can communicate explicitly without soliciting a meeting, and you can solicit a meeting without communicating explicitly, they could be separate acts. But since you could solicit a meeting in a sexually explicit way, they could be the same act.
Absent some indication of what specific message D was prosecuted for in 2010, whether the statute of limitations is tolled might depend on whether any soliciting communication was also sexually explicit.
If D’s lawyer had filed a motion to quash the 33.021(b) indictment in 2010 because it didn’t give him sufficient notice “to plead the judgment that may be given upon it in bar of any prosecution for the same offense”—Texas Code of Criminal Procedure article 21.04—the State might have had to plead the specific communication that was explicit, so that now the State could only prosecute him under 33.021(c) for that communication.
But who among us thought to file such motions to quash? I didn’t, and I doubt that anyone else did. So D is left in 2015 fighting about whether the State is prosecuting him now for the same conduct, same act, or same transaction. There may be a lesson in there.