Opinion
01-21-00464-CR
11-15-2022
Ex parte Lucas Vieira
Date motion filed: August 26, 2022
232nd District Court of Harris County Trial court case number: 0736891
En banc court consists of Chief Justice Radack and Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.
ORDER ON MOTION FOR EN BANC RECONSIDERATION
AMPARO GUERRA, JUDGE
Appellant, Lucas Vieira, has filed a motion for en banc reconsideration of this Court's August 16, 2022 opinion affirming the trial court's denial of appellant's pretrial application for writ of habeas corpus and motion to dismiss under the applicable statute of limitations. See Tex. R. App. P. 49.7.
A majority of the en banc court has voted to deny appellant's motion for en banc reconsideration. It is ordered that the motion is denied.
DISSENT FROM DENIAL OF EN BANC RECONSIDERATION
GORDON GOODMAN, JUSTICE
I respectfully dissent from the denial of en banc reconsideration. I agree with Vieira's claim that two years had passed before the State returned his indictment, and therefore the indictment was not returned within the two-year statute of limitations. I would grant en banc reconsideration so that this Court may dispel any confusion about counting time and provide clear guidance that, as required by the Court of Criminal Appeals, there can be no double counting of days.
The Code Construction Act explains how to count time for statutory deadlines. The Act provides that when a period of time is to be computed by counting the number of months from a particular day, the period ends on the same numerical day of the concluding month as the day of the month on which the computation began. Thus, a one-month period beginning July 7 ends on August 7.
But the Act also provides that in computing a period of days, the first day is excluded from the period and the last day is included in the period. The first day of the period is effectively Day 0 because it is excluded. Thus, in our example of the one-month period beginning July 7, July 7 is effectively Day 0. We begin counting the days on July 8, and the period runs through August 7. The one-month period comprises 31 counted days. If we were to count July 7 as Day 1 instead of Day 0, then the one-month period running through August 7 would comprise 32 counted days, which is longer than any month.
The Court of Criminal Appeals set out this approach in Nesbit v. State. In that case, while discussing the computation of time, the Court described two types of situations for which we must compute time: (1) a period in which one must perform some act before the expiration of the period, like a statute of limitations; and (2) a period in which one must exercise a particular right or suffer a particular penalty, like serving a sentence. In the former situation, we exclude the first day and include the last day, as the Code Construction Act provides. In the latter situation, we include the first day and exclude the last day. But in either situation, there can be "[n]o double counting." The first and last day of the period are never both included.
227 S.W.3d 64 (Tex. Crim. App. 2007).
Nesbit, 227 S.W.3d at 67.
Id. at 67-68.
Id. at 67.
Id. at 68.
In other words, a one-month period runs from July 7 to August 7 in both types of situations. In the former situation, July 7 is excluded but August 7 included. In the latter situation, July 7 is included but August 7 is excluded. Still, in neither situation are both July 7 and August 7 included. "No double counting." The Court explained:
Id.
[W]hen time is to be computed from or after a designated day, the designated day will be excluded while the last day of the period is to be included. If the first day of the period is to be included, however, the last day of the period is to be excluded. The last day is excluded in these
cases because if the first day and the last day are both included, the period would be a month plus one day.
Id. (quoting McGaughy v. City of Richardson, 599 S.W.2d 113, 115 (Tex. App.- Dallas 1980, writ ref'd n.r.e.)).
We must exclude either July 7 or August 7 from the count; if both days were included, that would be "double counting."
The same rules apply to counting a year. A year is simply 12 consecutive months. A one-year period beginning on July 7, 2019, ends on July 7, 2020. But July 7, the first day of the period, is effectively Day 0 because it is excluded. We begin counting the days of the year on July 8, and the one-year period runs through July 7, 2020. Each calendar day of the year is counted exactly once, so there is no double counting. For a two-year period beginning on July 7, 2019, we begin counting on July 8 of that year, and the two-year period runs through July 7, 2021. Each calendar day of the two-year period is counted exactly twice.
Under the approach endorsed by the majority, the counted days of the two-year period begin on July 8, 2019, and end on July 8, 2021. This is double counting because July 8 is included both at the beginning of the period and at the end of the period. Under this approach, the calendar day of July 8 is counted three times in the two-year period. The period is actually two years plus one day because the first day and the last day are both included.
See Nesbit, 227 S.W.3d at 68.
In this case, Vieira allegedly committed a crime on July 7, 2019. The statute of limitations for that crime is two years. The district attorney thus had two years from July 7, 2019, to return an indictment. Both the Code Construction Act and the Code of Criminal Procedure proscribe us from counting July 7, the first day of the period. July 7 is effectively Day 0. The counted days of this two-year period begin on July 8, 2019, and they run through July 7, 2021. Each day of the calendar year is counted exactly twice.
Vieira was charged with aggravated assault by a public servant. See Tex. Penal Code § 22.02(a)(2), (b)(2)(A). The statute of limitations for this offense is two years. See Tex. Code Crim. Proc. arts. 12.02(a), 12.03(d) (statute of limitations for aggravated offense is same as primary crime, which is two years for misdemeanor assault).
Tex. Code Crim. Proc. art. 12.04. The statute provides: "The day on which the offense was committed and the day on which the indictment or information is presented shall be excluded from the computation of time." Id.
The Code of Criminal Procedure also states that we must not count the day the indictment was returned. Here, the indictment was returned on July 9, 2021. Even without counting that day, the indictment was returned too late. The two-year period ended on July 7.
Id.
For this reason, I would grant en banc reconsideration, sustain Vieira's sole issue, reverse the trial court's order denying his application for the writ of habeas corpus, grant habeas relief, and dismiss the indictment.