Opinion
NO. 01-21-00464-CR
03-01-2023
EX PARTE Lucas VIEIRA, Appellant
Kim K. Ogg, Houston, Christopher Conrad, for State of Texas. James Scott Siscoe, for Appellant.
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Case No. 1736891
Kim K. Ogg, Houston, Christopher Conrad, for State of Texas.
James Scott Siscoe, for Appellant.
Panel consists of Justices Landau, Guerra, and Farris.
OPINION
Amparo Guerra, Justice
Appellant, Lucas Vieira, challenges the trial court’s order denying his pretrial "Application for Writ of Habeas Corpus and Motion to Dismiss Under Statute of Limitations." In his sole issue, appellant contends that the trial court "improperly denied" his application for writ of habeas corpus and motion to dismiss.
See Tex. R. App P. 31.
Tex. Gov’t Code § 311.014(c).
We affirm.
Background
Appellant is charged with the felony offense of aggravated assault by a public servant. On July 9, 2021, a Harris County Grand Jury issued a true bill of indictment alleging that, on or about July 7, 2019, appellant:
See Tex. Penal Code Ann § 22.02(a)(2), (b)(2)(A).
did then and there unlawfully, while a public servant, to-wit: a Houston Police, Officer, acting under color of his office and employment, intentionally and knowingly threaten [complainant] with imminent bodily injury by using and exhibiting a deadly weapon, namely, hand-cuffs.
See id.
227 S.W.3d 64 (Tex. Crim. App. 2007).
On July 23, 2021, appellant filed a pretrial "Application for Writ of Habeas Corpus and Motion to Dismiss Under Statute of Limitations," and "Memorandum in Support" of his habeas application and motion to dismiss, arguing that "the State is barred" from prosecuting appellant, because "[o]n its face, the indictment shows that the [appellant] was indicted more than two years after the date of the alleged offense," which, appellant argues, is outside the applicable statute of limitations. The trial court held two hearings on appellant’s habeas application and motion to dismiss, on August 13, 2021 and August 17, 2021. At the conclusion of the August 17, 2021 hearing, the trial court signed an order denying appellant’s requested habeas relief and motion to dismiss.
Appellant timely filed a notice of appeal from the trial court’s denial of his pretrial habeas application and motion to dismiss, In the sole issue raised in his appellant’s brief, appellant argues that the "trial court improperly denied [his] Application for Writ of Habeas Corpus and Motion to Dismiss Under Statute of Limitations finding that an indictment returned on July 9, 2021, based on an event that occurred on July 7, 2019, was within the two-year statute of limitations."
Standard of Review
[1, 2] In his appeal, appellant challenges the sufficiency of the indictment, specifically, whether the indictment was timely returned pursuant to the applicable statute of limitations. "The sufficiency of an indictment is a question of law." See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Where "the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness … the trial court is not in a better position to make the determination" than an appellate court on review, and as such "appellate courts should conduct a de novo review of the issue." Id.
[3] Here, the resolution of appellant’s application for habeas relief and motion to dismiss on limitations grounds do "not turn on an evaluation of the credibility and demeanor of a witness." Id. Accordingly, we will review the trial court’s denial of appellant’s application for habeas relief and motion to dismiss on limitations grounds de novo. Id.; see also Brice v. State, No. 14-13-00935-CR, 2015 WL 545557, at *1 (Tex. App.—Houston [14th Dist.] Feb. 10, 2015, no pet.) (mem. op., not designated for publication) ("We review de novo the trial court’s denial of the motion [to dismiss on limitations grounds] because it turned on a question of law, not on the credibility and demeanor of witnesses, and thus, the trial court was in no better position than our court to decide the motion.").
Analysis
In his sole issue, appellant argues that the trial court erred in denying his application for writ of habeas corpus and motion to dismiss under statute of limitations.
Appellant was charged with the felony offense of aggravated assault by a public servant. Tex. Penal Code Ann. §. 22.02(a)(2), (b)(2)(A). The true bill of indictment, issued by a Harris County Grand Jury, alleged that, on or about July 7, 2019, appellant "unlawfully, while a public servant, to-wit: a Houston Police Officer, acting under color of his office and employment, intentionally and knowingly threaten[ed] [complainant] with imminent bodily injury by using and exhibiting a deadly weapon, namely, handcuffs." The indictment was returned on July 9, 2019.
The parties agree that the applicable statute of limitations for the indicted offense, aggravated assault, is two years. See Tex. Code Crim. Proc. Ann. art. 12.02(a), 12.03(d); see also State v. Sckunior, 506 S.W.3d 29, 37-38 (Tex. Crim. App; 2016) (concluding that the statute of limitations for aggravated assault is two years where "the primary crime is misdemeanor assault"). The parties further agree that the alleged offense took place on July 7, 2019, and that the indictment was returned on July 9, 2021.
Importantly, the parties disagree regarding whether July 9, 2021 is within the two-year limitations period. In his brief, appellant argues that the indictment "was, on its face, filed two years and two days after the events on which the [i]ndictment was based occurred and clearly outside of the two-year limitations period," and as such "the prosecution against [appellant] was barred by the statute of limitations and should be, dismissed with prejudice." On the other hand, the State contends that "[a]ppellant’s argument fails because appellant has not property computed the limitations period applicable to his case," Accordingly, the issue presented is, on its face, straight-forward: was the indictment, dated July 9, 2021, returned within the two-year limitations period set forth in article 12.02(a) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 12.02(a).
A. General Principles of Statutory Interpretation
[4–6] The determination regarding whether the indictment was returned within the two-year limitations period requires us to interpret the applicable statutes, "In interpreting statutes, we seek to effectuate the Texas Legislature’s collective intent, and we presume that the Legislature intended for the entire statutory scheme to be effective." Tiscareno v. State, 608 S.W.3d 434, 437 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d). Giving effect to the Legislature’s intent requires that we look to "the plain meaning of the statute’s language unless it is ambiguous or the plain meaning would lead to absurd results that the [L]egislature could not have possibly intended." Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim. App. 2020). To determine the plain meaning of a statute, we must "presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible." Lang v. State, 561 S.W.3d 174, 180 (Tex. Crim. App. 2018) (quoting State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997)).
[7–9] If, however, the language of the statute is ambiguous, or the application of the statute’s plain meaning "would lead to absurd consequences that the Legislature could not possibly have intended … then and only then … is it constitutionally permissible for a court to consider" extra-textual factors. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (emphasis in original). "A statute is ambiguous when it ‘may be understood by reasonably well-informed persons in two or more different senses,’ " Lang, 561 S.W.3d at 180 (quoting Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012)). A statute is unambiguous where it permits only one reasonable understanding. See Yazdchi v. State, 428 S.W.3d 831, 838 (Tex. Crim. App. 2014).
B. Applicable Limitations Period to Offense Charged
At issue in this appeal is the interpretation of the statute of limitations for the offense appellant has been charged with, aggravated assault by a public servant. See Tex. Penal Code Ann. § 22.02(a)(2), (b)(2)(A). Limitations periods for criminal offenses are governed by Chapter 12 of the Code of Criminal Procedure, entitled, "limitation." See generally Tex. Code Crim. Proc. Ann. art. 12.01, et seq.
The offense of aggravated assault by a public servant is a first-degree felony. See Tex. Penal Code Ann. § 22.02(b)(2)(A) ("An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if … the offense is committed by a public servant acting under color of the servant’s office or employment."). However, the Code of Criminal Procedure provides that "any offense that bears the title ‘aggravated’ shall carry the same limitation period as the primary crime." See Tex. Code Crim. Proc. Ann. art. 12.03(d). The "primary crime" charged against appellant is misdemeanor assault. See Schunior, 506 S.W.3d at 37–38.
The limitations period of misdemeanor assault is set by article 12.02 of the Code of Criminal Procedure, which states that "[a]n indictment or information for any Class A or Class B misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward." Tex. Code Crim. Proc. Ann. art. 12.02(a). Accordingly, as the parties have agreed, the limitations period for the offense of aggravated assault is two years. However, in calculating the limitations period, the Code of Criminal Procedure further provides that "[t]he 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." Tex Code Crim. Proc. Ann. art. 12.04 (titled "computation").
C. Charge to Ensure Entire Statutory Scheme is Effective
[10] According to appellant, on its face, the July 9, 2021 indictment was returned "two years and two days" after the date of the alleged offense, July 7, 2019, and as such, "the statute of limitations had expired before [appellant] was indicted, [and] the trial court’s decision should be reversed, and the charges against him should be dismissed with prejudice."
However, in interpreting statutes, our charge is to "effectuate the Texas Legislature’s collective intent," and to interpret statutes to ensure that the "entire statutory scheme … [is] effective." See Tiscareno, 608 S.W.3d at 437. To do so, we must look beyond the language of only article 12.02 of the Code of Criminal Procedure, and "presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible." Lang, 561 S.W.3d at 180 (quoting State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997)). In effectuating the Legislature’s collective intent, we cannot ignore that article 12.04 of the Code of Criminal Procedure, titled "computation," requires that, in computing limitation periods, "[t]he 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." Tex. Code Crim. Proc. Ann. art. 12.04 (emphasis added).
In his brief, appellant contends that the indictment "was, on its face, filed two years and two days" after the alleged offense, and that "in order to prosecute [appellant] for the offense, the State was required to present ‘an indictment or information’ against him by July 7, 2021, ‘and not afterward.’" However, appellant’s argument ignores the language of article 12.04, thus failing to account for the "entire statutory scheme."
In his brief, appellant briefly addresses article 12.04, and its applicability to this situation, stating:
The State will contend that under [a]rticle 12.04 of the Texas Code of Criminal Procedure, the date of the event and that date of the [i]ndictment are not counted. In this case, that would mean that July 7, 2019 (the day of the event) is not counted in the calculation. As such, the first day counted would be July 8, 2019. The last day of the two-year period would be July 7, 2021. And, by not counting the day of the indictment, an indictment filed on July 8, 2021 would have been timely (i.e., filed on the last day).
However, looking only at the plain language of articles 12.02 and 12.04 of the Code of Criminal Procedure, appellant’s conclusion is faulty on its face, and inconsistent with his own analysis elsewhere in his brief.
First, despite correctly acknowledging that article 12.04 requires that the day of the alleged offense be excluded from the computation and conceding that "the first day counted would be July 8, 2019," appellant concludes that the "last day of the two-year period would be July 7, 2021." This is inconsistent with the conclusion reached by appellant’s analysis of the limitations period pursuant to article 12.02(a), where he contends that by "the express language of article 12.02(a) … the State was required to present ‘an indictment or information’ against him by July 7, 2021, ‘and not afterward.’ " Appellant argues throughout his brief, without accounting for article 12.04, that the limitations period ran from July 7, 2019 to July 7, 2021. Applying this logic, if "the first day counted [was] July 8, 2019," as appellant correctly acknowledges, it naturally follows that the last day of the two-year period would be July 8, 2021, not July 7, 2021.
Appellant’s brief cites to several cases for the proposition that a limitations period ends on the same calendar date as it begins, absent any question of tolling. See e.g., State v. Drummond, 472 S.W.3d 857, 861 (Tex. App.— Houston [1st Dist.] 2015), rev’d, 501 S.W.3d 78 (Tex. Crim. App. 2016)) ("[P]ursuant to the express language of article 12.02(a), the State, to prosecute appellee for the offense [occurring on September 10, 2011], was required to present ‘an indictment or information’ against him by September 10, 2013, ‘and not afterward.’ ") (emphasis in original); Anderson v. State, 322 S.W.3d 401, 408 (Tex. App.—Houston [14th Dist.] 2010; pet. ref’d) ("Therefore, the statute of limitations on the offense of theft began to run on June 1, 2000, meaning that it expired on June 1, 2005."); Gallardo v. State, 768 S.W.2d 875, 880 (Tex. App.—San Antonio 1989, pet. ref’d) ("The three year limitation period being applicable to the instant offense, and the date alleged in the indictment being December 1, 1982, appellant’s prosecution was barred on December 1, 1985 …"). Appellant argues that these cases support his contention that the limitations period ended on July 7, 2021, and the July 9, 2021 indictment was therefore untimely. We note however, that none of the cases cited by appellant include any discussion or analysis of the application of article 12.04. Similarly, we are not aware of any precedent from the Court of Criminal Appeals addressing the application of article 12.04 to the computation of limitations periods. This does not mean however, that we can simply ignore the express and unequivocal language of article 12.04, and its impact on the calculation of the limitations period at issue under the facts presented in this appeal. See Tiscareno v. State, 608 S.W.3d 434, 437 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) ("In interpreting statutes, we seek to effectuate the Texas Legislature’s collective intent, and we presume that the Legislature intended for the entire statutory scheme to be effective.").
Nesbit, 227 S.W.3d at 67.
Applying the express language of article 12.04 of the Code of Criminal Procedure, requiring that "[t]he day on which the offense was committed … shall be excluded from the computation of time," to the facts here, we conclude that the first day counted for purposes of computation of time related to the statute of limitations is July 8, 2019. Tex. Code Crim. Proc. Ann. art. 12.04. Further, given the unambiguous language of article 12.02(a), we conclude that the two-year period ended on July 8, 2021.
[11] This does not end the necessary analysis because, in addition to excluding the day of the offense from the computation of time, article 12.04 further requires that "the day on which the indictment or information is presented shall be excluded from the computation of time." Tex. Code Crim. Proc. Ann. art 12.04. Returning to appellant’s analysis of the State’s expected argument, appellant states that, accounting for article 12.04 of the Code of Criminal Procedure, "the first day counted would be July 8, 2019," and "[t]he last day of the two-year period would be July 7, 2021," leading appellant to conclude that, "by not counting the day of the indictment, an indictment filed on July 8, 2021 would have been timely (i.e., filed on the last day)."
We agree with appellant’s analysis, in part. As discussed above, we disagree with appellant’s analysis regarding the calculation of the "last day of the two-year period," and conclude that the last day of the two-year period was July 8, 2021. However, we agree with appellant and conclude that the unambiguous language of article 12.04 leads to only one reasonable interpretation: the date an indictment is returned is not included in the computation of the statute of limitations. See Tex Code Crim. Proc. Ann. art. 12.04. Accordingly, pursuant to the express language of article 12.04, an indictment that is returned one day after the end of the two-year period is within the limitations period provided by article 12.02(a).
Here, the alleged offense occurred on July 7, 2019. Pursuant to article 12.04, July 7, 2019 is excluded from the computation of the limitations period, and the first day of the period was, July 8, 2019. See Tex. Code Crim. Proc. Ann. art. 12.04 ("The day on which the offense was committed … shall be excluded from the computation of time."). Applying the plain language of the statute, the two-year limitations period for aggravated assault ended on July 8, 2021. See Tex. Code Crim. Proc. Ann. art. 12.02(a), 12.03. However, as appellant acknowledges, taking into account the language of article 12.04, we must not "count[ ] the day of the indictment," and therefore, an indictment dated July 9, 2021 would be "filed on the last day." See Tex Code Crim. Proc. Ann. art. 12.04 ("… the day on which the indictment or information is presented shall be excluded from the computation of time."). Accordingly, we conclude that the indictment, dated July 9, 2021, was returned within the limitations period. See Tex. Code Crim. Proc. Ann. art. 12.02(a), 12.04.
D. Conflict Between Articles 12.02(a) and 12.04
Appellant argues that this conclusion "directly conflicts with the clear language" of article 12.02(a), and that "on its face, July 7, 2019-July 9, 2021 is more than two years." And, according to appellant, the "plain language of the statute is clear, and any interpretation that allows a date after two years conflicts with the statute."
In support of this argument, appellant relies on the final clause of article 12.02(a), which states that an indictment must be "presented within two years from the date of the commission of the offense, and not afterward." Tex. Code Crim. Proc. Ann. art. 12.02(a) (emphasis added). Appellant argues that the language of article 12.02(a) "is not ambiguous and a literal interpretation of the plain language of [the] statute does not lead to an absurd result," which, according to appellant means that any indictment returned after July 7, 2021 should be barred as outside of the limitations period.
Contrary to appellant’s assertions, it is this conclusion that "directly conflicts with the clear language of the statute." The conclusion advocated for by appellant, that the limitations period ended on July 7, 2021, would require us to ignore the language of article 12.04, which we must not do. See Tiscareno, 608 S.W.3d at 437 ("In interpreting statutes, we seek to effectuate the Texas Legislature’s collective intent, and we presume that the Legislature intended for the entire statutory scheme to be effective."). We must give effect to the entire statutory scheme, and "read the statute in context and give effect to each Word, phrase, clause, and sentence if reasonably possible." Lang, 561 S.W.3d at 180 (quoting State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997)).
In article 12.02 of the Code of Criminal Procedure, the "[L]egislature provided for a period of limitations upon prosecutions." See Rendon v. State, 695 S.W.2d 1, 5 (Tex. App.—Corpus Christi-Edinburg 1984, pet. ref’d) (concluding there is "no conflict" between articles 12.02(a) and 12.04); Tex. Code Crim. Proc. Ann. art. 12.02(a). Then, in article 12.04, the Legislature "prescribed the method of computing this period." See Rendon, 695 S.W.2d at 5; Tex. Code Crim. Proc. Ann. art. 12.04. This is a statutory scheme which the Legislature "clearly ha[s] the authority to" implement, and we see "no conflict" between the limitations period provided by article 12.02(a), and the computation of that limitations period as provided by article 12.04 of the Code of Criminal Procedure. See Rendon, 695 S.W.2d at 5.
Conclusion
Accordingly, we overrule appellant’s sole issue and affirm the order of the trial court.
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.1a 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.2a 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.3a 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.4a 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.
Id. at 67–68.
Id at 67
M 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.
Tex. Gov’t Code § 311 .005(12).
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 be- cause 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.