Ex Parte Eric Rosales ( 2022 )


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  •                            NUMBER 13-22-00100-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    EX PARTE ERIC ROSALES
    On appeal from the 445th District Court
    of Cameron County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Contreras and Justices Longoria and Tijerina
    Memorandum Opinion by Justice Longoria
    Appellant Eric Rosales was indicted in 2021 for multiple counts of sexual assault
    of a child and indecency with a child that allegedly occurred from 2008 to 2009. He filed
    a pretrial application for writ of habeas corpus on the grounds that the statute of limitations
    had expired as to each count. The trial court denied his application. Rosales appeals that
    denial. We affirm.
    I.      BACKGROUND
    Rosales was charged with three counts of sexual assault of a child in Count One,
    Count Two, and Count Three of the indictment. See TEX. PENAL CODE ANN.
    § 22.011(a)(2). Count One alleged an offense date of on or about January 1, 2009; Count
    Two alleged an offense date of on or about February 1, 2009; and Count Three alleged
    an offense date of on or about March 1, 2009. Rosales was also charged with three counts
    of indecency with a child by sexual contact in Count Four, Count Five, and Count Six of
    the indictment. See id. § 21.11(a)(1). Count Four alleged an offense date of on or about
    October 1, 2008; Count Five alleged an offense date of on or about November 1, 2008;
    and Count Six alleged an offense date of on or about December 1, 2008. The
    complainant, A.M., was born on September 29, 1992; consequently, A.M. would have
    been approximately sixteen years old when the crimes purportedly happened. Rosales
    was indicted on September 1, 2021, just a few weeks prior to A.M.’s twenty-ninth birthday.
    On November 4, 2021, Rosales filed his motion to dismiss. On December 6, 2021,
    Rosales filed his “Exception to the Substance of the Indictment” and application for writ
    of habeas corpus. In his motion to dismiss and habeas application, Rosales contended
    that the offenses as charged were barred by the statute of limitations. See TEX. CODE
    CRIM. PROC. ANN. art. 27.08(2). 1 On December 15, 2021, the State filed its response to
    Rosales’s motion to dismiss and application for writ of habeas corpus. On March 9, 2022,
    a hearing was held on Rosales’s habeas application and the trial court orally denied the
    writ. On March 16, 2022, Rosales filed his notice of appeal of the trial court’s order. On
    March 18, 2022, the trial court signed and entered its written order denying Rosales’s
    1 Pursuant to the Texas Code of Criminal Procedure, “[t]here is no exception to the substance of
    an indictment or information except,” among other things, “[t]hat it appears from the face thereof that a
    prosecution for the offense is barred by a lapse of time.” TEX. CODE CRIM. PROC. ANN. art. 27.08(2).
    2
    application for writ of habeas corpus. On March 28, 2022, the trial court certified Rosales’s
    right to appeal, and this appeal ensued. See TEX. R. APP. P. 25.2(a)(2).
    II.      STANDARD OF REVIEW AND APPLICABLE LAW
    The pretrial writ of habeas corpus is an extraordinary remedy. Ex parte Doster, 
    303 S.W.3d 720
    , 724 (Tex. Crim. App. 2010). Pretrial habeas relief is generally not
    appropriate to test the sufficiency of a charging instrument. See Ex parte Tamez, 
    38 S.W.3d 159
    , 160–61 (Tex. Crim. App. 2001). An exception applies when prosecution of
    the offense is barred by the statute of limitations because “the defect is incurable and
    irreparable.” Ex parte Smith, 
    178 S.W.3d 797
    , 802 (Tex. Crim. App. 2005). Therefore, “if
    the pleading, on its face, shows that the offense charged is barred by limitations[,] the
    complaint, information, or indictment is so fundamentally defective that the trial court does
    not have jurisdiction and habeas corpus relief should be granted.” Ex parte Dickerson,
    
    549 S.W.2d 202
    , 203 (Tex. Crim. App. 1977); see Ex parte Smith, 
    178 S.W.3d at
    801–
    02.
    We review the trial court’s ruling on an application for writ of habeas corpus for an
    abuse of discretion. Ex parte Wheeler, 
    203 S.W.3d 317
    , 324 (Tex. Crim. App. 2006). But
    when, as here, the resolution of the ultimate issue turns on an application of purely legal
    standards, our review is de novo. See Ex parte Martin, 
    6 S.W.3d 524
    , 526 (Tex. Crim.
    App. 1999); Ex parte Lovings, 
    480 S.W.3d 106
    , 111–12 (Tex. App. —Houston [14th Dist.]
    2015, no pet.) (conducting de novo review of statutory construction issue in appeal from
    denial of application for writ of habeas corpus).
    3
    III.       DISCUSSION
    In his sole issue, Rosales contends that the trial court abused its discretion when
    it denied his application for pretrial writ of habeas corpus. Rosales argues that there are
    two “irreconcilable” statutes of limitations, and that the most recently enacted one made
    the statute of limitations for the crimes charged against him to be ten years after the
    eighteenth birthday of the victim. If Rosales is correct, the statute of limitations for the
    crimes charged against him would have expired on September 29, 2020—ten years after
    A.M.’s eighteenth birthday—therefore, the September 1, 2021 indictment would have
    been barred by the statute of limitations.
    Limitations for a previous crime may be extended by the legislature as long as it
    has not expired. Lindsey v. State, 
    760 S.W.2d 649
    , 653 (Tex. Crim. App. 1988). House
    Bill 8 (H.B. 8), effective September 1, 2007, amended the statute of limitations applicable
    to sexual assault of a child under penal code § 22.011(a)(2) and indecency with a child
    under penal code § 21.11 from “ten years after the 18th birthday of the victim of the
    offense” to “no limitation”. See Act of May 28, 2007, 80th Leg., R.S., ch. 593, § 1.03, 
    2007 Tex. Gen. Laws 1120
    , 1121 (codified at TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(B),
    (E)); see TEX. PENAL CODE ANN. §§ 22.011(a)(2), 22.11. House Bill 959 (H.B. 959), also
    effective September 1, 2007, amended the statute of limitations applicable to the offense
    of injury to a child under penal code § 22.04 to “ten years from the 18th birthday of the
    victim of the offense.”2 See Act of May 28, 2007, 80th Leg., R.S., ch. 841 § 1, 2007, 2007
    2 Before passage of H.B. 959, the statute of limitations for the offense of injury to a child under
    penal code § 22.04 depended on what level felony the offense was punishable as. A charge of injury to a
    child punishable as a first-degree felony had a statute of limitations of ten years from the date of the
    commission of the offense. Act of May 28, 2007, 80th Leg., R.S., ch. 841, § 1, 2007, 
    2007 Tex. Gen. Laws
                                           4
    Tex. Gen. Laws 1750, 1751 (codified at TEX. CODE CRIM. PROC. ANN. art. 12.01(5)(C)) 3;
    see TEX. PENAL CODE ANN. art. 22.04. H.B. 8 and H.B. 959 were both signed by the
    Governor of Texas on June 15, 2007.
    Rosales’s argument, that H.B. 959 prevails over H.B. 8 for being the latest in date
    of enactment, is predicated on his contention that the two statutes are in irreconcilable
    conflict. The Code Construction Act provides that “if amendments to the same statute are
    enacted at the same session of the legislature, one amendment without reference to
    another, the amendments shall be harmonized, if possible, so that effect may be given to
    each.” TEX. GOV’T CODE ANN. § 311.025(b). However, “[i]f the amendments are
    irreconcilable, the latest in date of enactment prevails.” Id. The “date of enactment” is the
    “date on which the last legislative vote is taken on the bill enacting the statute.” Id.
    § 311.025(d).
    Both H.B. 8 and H.B. 959 were amendments to Article 12.01 of the Texas Code of
    Criminal Procedure enacted by the 80th Legislature. Neither bill references nor
    incorporates the amendments made in the other. In other words, the amended statute of
    limitations for sexual assault of a child and indecency of a child is not altered by H.B. 959.
    Likewise, the amended statute of limitations for injury to a child is not altered by H.B. 8.
    In H.B. 8 and H.B. 959, the legislature set forth the entire body of Article 12.01 as it then
    1750, 1751 (codified at TEX. CODE CRIM. PROC. ANN. art. 12.01(5)(C)). A charge of injury to a child not
    punishable as a first-degree felony had a statute of limitations of five years from the date of the commission
    of the offense. Id.
    This provision is currently, at the time of issuance of this memorandum opinion, codified at TEX.
    3
    CODE CRIM. PROC. ANN. art. 12.01(6)(B).
    5
    existed before the legislative session began and manifested the amendments to the
    statute of limitations in each bill through interlineations and underlines. This manner of
    amending a statute was and is required by the Texas Constitution. See TEX. CONST. art.
    III, § 36. (stating that “[n]o law shall be revived or amended by reference to its title; but in
    such case the act revived, or the section or sections amended, shall be re-enacted and
    published at length”); Rhoades v. State, 
    934 S.W.2d 113
    , 121 (Tex. Crim. App. 1996)
    (explaining that to amend a statute, the Iegislature must take the text of the statute as it
    was prior to the amendment and indicate changes by interlineating modifications onto the
    text of that statute). The Code Construction Act states the following:
    (c) In determining whether amendments are irreconcilable, text that is
    reenacted because of the requirement of Article III, Section 36, of the Texas
    Constitution is not considered to be irreconcilable with additions or
    omissions in the same text made by another amendment. Unless clearly
    indicated to the contrary, an amendment that reenacts text in compliance
    with that constitutional requirement does not indicate legislative intent that
    the reenacted text prevail[s] over changes in the same text made by another
    amendment, regardless of the relative dates of the enactment.
    TEX. GOV’T. CODE ANN. § 311.025(c). Regarding H.B. 8 and H.B. 959, both enactments
    amended different provisions of the same statute. Given that the text of the statute
    reenacted by the legislature to manifest the changes is not indicative of the legislature’s
    intent pursuant to § 311.025(c), we find no irreconcilable conflict between H.B. 8 and H.B.
    959. See id.; see also Rhoades, 
    934 S.W.2d at
    121–22 (finding that a house bill and a
    senate bill which amended different provisions of code of criminal procedure Article 37.07
    were reconcilable and not in conflict); Weddel v. State, 07-15-00302-CR, 
    2015 WL 6522868
     *1 (Tex. App.—Amarillo, Oct. 28, 2015, pet ref’d) (mem. op., not designated for
    publication) (determining that there is not a irreconcilable conflict between H.B. 8 and
    6
    H.B. 956, which amended different provisions of code of criminal procedure Article 12.01).
    Having found no conflict, it is unnecessary to determine which house bill was the latest in
    date of enactment. See TEX. GOV’T CODE ANN. § 311.025(b).
    The portion of Article 12.01 that assigns “no limitations” to the crime of sexual
    assault of a child and indecency of a child applies to the criminal prosecution of Rosales.
    See TEX. CODE CRIM. PROC. ANN. art. 12.01. As of the effective date of these amendments,
    September 1, 2007, limitations had not expired for the offenses charged against Rosales.
    See Lindsey, 
    760 S.W.2d at 653
    . Therefore, the statute of limitations did not expire for
    the sexual assault of a child and indecency of a child offenses alleged against Rosales at
    the time the indictment was filed. The trial court did not err in holding as such.
    IV.       Conclusion
    We affirm the trial court’s denial of Rosales’s application for pre-trial writ of habeas
    corpus.
    NORA L. LONGORIA
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2 (b).
    Delivered and filed on the
    11th day of August, 2022.
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