Schunior, Victor Manuel Jr.

PD-0526-15
No. PD-___________________
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
—————————
No. 04–14–00347–CR
In the Fourth Court of Appeals
No. 2013CRM000371 D1
In the 49th District Court of Webb County, Texas
—————————
THE STATE OF TEXAS, Appellant
v.
VICTOR MANUEL SCHUNIOR JR., Appellee
Appeal from Webb County
* * * * *
STATE’S  PETITION  FOR  DISCRETIONARY  REVIEW
(As Appellant)
* * * * *
May 6, 2015
ISIDRO R. ALANIZ
DISTRICT ATTORNEY
49th Judicial District
By:
DAVID L. REUTHINGER, JR.
Assistant District Attorney,
Bar I.D. No. 24053936
dreuthinger@webbcountytx.gov
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS............................................................................... i
IDENTITY OF PARTIES .......................................................................... iii
INDEX OF AUTHORITIES ....................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT .................................. 2
STATEMENT OF THE CASE .................................................................... 2
STATEMENT OF PROCEDURAL HISTORY .......................................... 3
GROUNDS FOR REVIEW .......................................................................... 3
ARGUMENT AND AUTHORITIES........................................................... 4
1) Is the limitations period for aggravated assault governed by Article
12.01(7) rather than Article 12.03(d) of the Code of Criminal Procedure?
................................................................................................................... 6
2) If the limitations period for aggravated assault is governed by Article
12.03(d), does the lesser-included offense with the greater limitations
period control when the lesser-included offenses of the aggravated
assault include both misdemeanor assault and a felony? ........................ 12
PRAYER FOR RELIEF ............................................................................. 18
CERTIFICATE OF COMPLIANCE .......................................................... 19
CERTIFICATE OF SERVICE ................................................................... 19
ii
IDENTITY OF PARTIES
TRIAL COURT JUDGE
Honorable Jose  A.  “Joe”  Lopez
49th Judicial District Court
PARTIES
STATE (APPELLANT AND PETITIONER):
THE STATE OF TEXAS
Represented by:
ISIDRO R. ALANIZ
District Attorney, 49th Judicial District
By: David L. Reuthinger, Jr., Assistant District Attorney
Webb County Justice Center, 4th Floor
1110 Victoria St., Suite 401
Laredo, Texas 78040
(956) 523-4951
(956) 523-5070 (Fax)
dreuthinger@webbcountytx.gov
APPELLEE / RESPONDENT:
VICTOR MANUEL SCHUNIOR, JR.
Represented by:
ROBERTO BALLI and CLAUDIA BALLI
Balli Law Office
P.O. Box 1058
Laredo, Texas 78042-1058
Tel: (956) 712-4999
Fax: (956) 724-5830
robertoballi@sbcglobal.net
iii
INDEX OF AUTHORITIES
Cases
Aguirre v. State,
22 S.W.3d 463, 481 (Tex. Crim. App. 1999) ............................................. 14
Bowen v. State,
374 S.W.3d 427, 432 (Tex. Crim. App. 2012) ........................................... 14
Boykin v. State,
818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991) ............................ 4, 6, 7, 9
Ex parte Matthews,
933 S.W.2d 134 (Tex. Crim. App. 1996) ..................................................... 9
Ex parte Salas,
724 S.W.2d 67, 68 (Tex. Crim. App. 1987) ................................................. 8
Fantich v. State,
420 S.W.3d 287 (Tex. App.—Tyler 2013, no pet.) ...................................... 6
Griffith v. State,
116 S.W.3d 782, 785 (Tex. Crim. App. 2003) ............................... 13, 15, 17
Hall v. State,
225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007) ...................................... 14
Henson v. State,
No. 05-97-01894-CR, 2000 WL 1123509, at *3 (Tex. App.—Dallas 2000,
pet.  ref’d)  (not  designated  for  publication) ............................................. 16
Honeycutt v. State,
82 S.W.3d 545, 548-49 (Tex. App.—San Antonio 2002) .............. 12, 15, 16
Hunter v. State,
576 S.W.2d 395, 399 (Tex. Crim. App. 1979) ............................................. 8
Irving v. State,
176 S.W.3d 842, 845 (Tex. Crim. App. 2005) ........................................... 14
iv
Ivey v. State,
277 S.W.3d 43, 52 n. 51 (Tex. Crim. App. 2009) .................................... 6, 8
Marin v. State,
891 S.W.2d 267, 271-72 (Tex. Crim. App. 1994) ...................................... 10
Muniz v. State,
851 S.W.2d 238, 244 (Tex. Crim. App. 1993) ........................................... 12
Ramos v. State,
303 S.W.3d 302, 307 (Tex. Crim. App. 2009) ........................................... 16
State v. Bennett,
415 S.W.3d 867 (Tex. Crim. App. 2013) .................2, 4, 7, 9, 10, 13, 15, 17
State v. Colyandro,
233 S.W.3d 870, 877-78 (Tex. Crim. App. 2007) ...................................... 10
State v. Medrano,
67 S.W.3d 892, 896, 901 n.22 (Tex. Crim. App. 2002) ............................. 10
State v. Schunior,
No. 04-14-00347-CR, ___ S.W.3d ___ (Tex. App.—San Antonio April 22,
2015) ........................................................................................ 3, 6, 8, 9, 14
Tita v. State,
267 S.W.3d 33, 38 (Tex. Crim. App. 2008) ............................................... 14
Yazdchi v. State,
428 S.W.3d 831, 838 (Tex. Crim. App. 2014) ............................................. 6
Statutes
TEX. CODE CRIM. PROC. art. 12.01(7) ..................................................... 4, 12
TEX. CODE CRIM. PROC. art. 12.03(d) ..................................................... 4, 17
TEX. PENAL CODE § 22.05(b) ...................................................................... 16
v
Rules
TEX. R. APP. P. 66.3(b), (c) ............................................................... 8, 11, 17
Other Authorities
MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed.) .......................... 16
vi
No. PD-___________________
No. 04–14–00347–CR
In the Fourth Court of Appeals
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
THE STATE OF TEXAS, Appellant
v.
VICTOR MANUEL SCHUNIOR JR., Appellee
Appeal from Webb County
* * * * *
STATE’S  PETITION  FOR  DISCRETIONARY  REVIEW
(As Appellant)
* * * * *
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through her District Attorney,
ISIDRO R. ALANIZ, through his Assistant District Attorney, David L.
Reuthinger, Jr., and respectfully urges this Court to grant discretionary
review of the above named cause, pursuant to the rules of appellate
procedure.
1
STATEMENT REGARDING ORAL ARGUMENT
The State requests oral argument. The State asks the Court to resolve
the cliffhanger from State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App.
2013), in which the procedural posture of that case prevented the Court
from reaching the underlying issue of whether aggravated assault has a
two-year or a three-year limitations period. In this case, the Appellee was
charged in three of the four indicted counts for discharging a firearm in the
direction of three persons within vehicles—so these aggravated-assault
counts have felony deadly conduct as a lesser-included offense. Therefore,
this case presents a special consideration: whether a two-year limitations
period for  an  “aggravated”  offense  that  has  a  three-year  “lesser”  included
offense would be an absurd statutory interpretation that the Legislature
could not possibly have intended. The State requests argument to illustrate
this.
STATEMENT OF THE CASE
The Appellee, Victor Manuel Schunior, Jr. was indicted for four
counts of aggravated assault. The offenses are alleged to have occurred on
February 19, 2011. The indictment was returned on April 17, 2013, two
years and two months after the shootings occurred. All but one of the
counts allege that Appellee discharged a firearm at persons as they were
2
exiting vehicles. Appellee moved for dismissal of all four counts, asserting
that per Article 12.03(d), Code of Criminal Procedure, the limitations
period for aggravated assault was two years and had run. The State
responded that the limitations period was three years per Article  12.01(7)’s
catch-all  provision  for  “all  other  felonies”   not listed in Article 12.01.
STATEMENT OF PROCEDURAL HISTORY
Appellee’s  motion  to  dismiss  was  granted  by  the  trial  court  on  April
15, 2014 and the State appealed the dismissal order on April 30, 2014. On
April 22, 2015, the court of appeals issued a published opinion affirming
the dismissal order in its entirety. State v. Schunior, No. 04-14-00347-CR,
___ S.W.3d ___ (Tex. App.—San Antonio April 22, 2015) (Tab “A”). The
State now seeks discretionary review from this Court.
GROUNDS FOR REVIEW
1) Is the limitations period for aggravated assault governed by Article
12.01(7) rather than Article 12.03(d) of the Code of Criminal
Procedure?
2) If the limitations period for aggravated assault is governed by
Article 12.03(d), does the lesser-included offense with the greater
limitations period control when the lesser-included offenses of the
aggravated assault include both misdemeanor assault and a felony?
3
ARGUMENT AND AUTHORITIES
This is an issue of statutory construction: is the limitations period for
aggravated assault always three years because it is a felony, TEX. CODE
CRIM. PROC. art. 12.01(7);;   or   is   it   instead   controlled   by   the   ‘aggravated
same   as   primary   crime’   provision, even when the underlying assault is a
misdemeanor? TEX. CODE CRIM. PROC. art. 12.03(d). As the Court knows,
the issue of which article controls the limitations period for aggravated
assault  is  contentious,  and  “the law is unsettled….”  Bennett, 415 S.W.3d at
869. The court of appeals made a commendable attempt to answer this
question, but it respectfully erred by breaking the ancient doctrine that
“[only  if] the plain language of a statute would lead to absurd results, or if
the language is … ambiguous, then and only then, …is it constitutionally
permissible for a court to consider …   such extratextual factors as …
legislative history.”  Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim.
App. 1991) (emphasis in original).
The court of appeals has also reached an unprecedented result: it is
now  possible  for  a  “lesser-included”  offense  of  an  “aggravated”  offense  to
have a longer limitations period than the so-called   “aggravated”   offense
itself. The same criminal act that constitutes third-degree felony deadly
conduct, which has a three-year limitations period, can only be charged as
4
the greater second-degree felony offense of aggravated assault if the
indictment is within two years of the occurrence. That is backwards.
The underlying limitations issue needs to be resolved, and this is the
right case. Further development of the limitations issue in the courts of
appeal is unlikely. Rather, the courts are likely to follow Fantich and the
opinion below in misapplying Boykin to resolve this issue unless this Court
intervenes. And the second issue underscores the concerns of the Judges
who favor the three-year interpretation, while providing strong evidence in
its favor. Finally, this case also provides a third way: a compromise which
could give effect to the Presiding  Judge’s argument for an Article 12.03(d)
two-year interpretation, satisfy the concerns of the Judges who disagree
with that interpretation, and avoid the absurd result reached by the court of
appeals—all while ensuring that this Appellee will face justice as charged
on the first three counts.
5
1) Is the limitations period for aggravated assault governed by Article
12.01(7) rather than Article 12.03(d) of the Code of Criminal
Procedure?
A. The Court of Appeals Contradicted Boykin By Concluding the Statutes
Were Unambiguous While Using An Ambiguous-Statute Analysis To
Defend That Conclusion
There are but two mutually-exclusive methods for interpreting penal
statutes. Boykin, 818 S.W.2d at 785-86 (plain text controls, and
extratextual sources are consultable only if plain text is ambiguous or leads
to absurd results); Ivey v. State, 277 S.W.3d 43, 52 n. 51 (Tex. Crim. App.
2009). “Ambiguity [in a statute] exists when the statutory language may be
understood by reasonably well-informed persons in two or more different
senses[.]”  Yazdchi v. State, 428 S.W.3d 831, 838 (Tex. Crim. App. 2014).
In Bennett, the divided Judges of this Court certainly understood these
articles to be reasonably understandable in two or more different senses.
But the court of appeals, citing Fantich v. State, 420 S.W.3d 287
(Tex. App.—Tyler 2013, no pet.), concluded   that   the   “statutes are not
ambiguous and may be harmonized to give effect to the entire statutory
scheme”—and that this “effect” is a two year result. Slip op. at p. 12
(emphasis added); Fantich, 420 S.W.3d at 290 (“Articles 12.01 and 12.03
of the code of criminal procedure are not ambiguous….”). When the
6
State’s   Brief pointed out that a three-year result was also possible under
the plain-language rules, that this plus this   Court’s   divided   Bennett
opinions proved that the statutes were ambiguous, and that the Fantich
plain-language approach was therefore inapplicable pursuant to Boykin, the
court of appeals began borrowing freely from the reasoning of Presiding
Judge   Keller’s   Bennett concurrence to defend Fantich. Slip op. at p. 13.
But unlike the Fantich court, the Presiding Judge concluded that the
statutes are ambiguous, and conducted an extratextual legislative-history
analysis accordingly. Bennett, 415 S.W.3d at 878 (Keller, P.J., concurring).
Thus, by using  the  Presiding  Judge’s  Bennett concurrence to defend
Fantich, the court of appeals purported to hold that the statutes were
unambiguous, while using an ambiguous-statute analysis to defend that
conclusion. To use a respectful analogy, the venerable Boykin rule required
the court of appeals to purchase its statutory analysis from either Peter
(ambiguous/absurd statute analysis) or Paul (plain statute analysis)—but
not both. Boykin, 818 S.W.2d at 785-86. Either the statute is ambiguous, or
it is not—yet the court of appeals borrowed from Peter to pay Paul, and
therefore avoided actually taking the first step in the proper statutory
analysis.
7
So which is it? If the Fantich unambiguous-statute logic does not
hold unless it is supported by an ambiguous-statute legislative-history
analysis, then the statute is ambiguous. See Ivey, 277 S.W.3d at 52 n. 51.
Accordingly, the court of appeals, like the Fantich court before it,
respectfully erred in basing its reasoning on a plain-language analysis that
is appropriate only for unambiguous statutes. Therefore,   the   “plain
unambiguous language”2 reasoning of Fantich is incorrect, as is that of the
Fantich-based opinion of the court of appeals below. Since those courts
respectfully misapplied Boykin, that alone is reason to grant review—and
here, there is also the opportunity to reach the underlying issue on the
merits. TEX. R. APP. P. 66.3(b), (c).
B. The Court of Appeals Did Not Consider That the Legislature Intended to
Treat Aggravated Assault Differently than Aggravated Perjury and
Improperly Placed the Burden on the Legislature
The Court has provided a 30-year-old line of dicta stating that the
limitations  period  for  the  specific  offense  of  aggravated  assault  had  “long
been   three   years.”   Ex parte Salas, 724 S.W.2d 67, 68 (Tex. Crim. App.
1987); see also Hunter v. State, 576 S.W.2d 395, 399 (Tex. Crim. App.
1979). Since the statutes are ambiguous, neither Fantich nor the court
2
Slip op. at p. 18.
8
below could reject the Salas/Hunter line from the statutory language
alone. See Boykin, 818 S.W.2d at 785-86.
The court of appeals also relied on a line of dicta based upon Ex
parte Matthews, 933 S.W.2d 134 (Tex. Crim. App. 1996), stating in dicta
that the result for aggravated perjury was two years. But it does not follow
that the same is true for aggravated assault. As Judge   Johnson’s   Bennett
concurrence pointed out, aggravated assault is different in kind from the
other   “aggravated”   offenses   that   cross   the   misdemeanor-felony divide.
Bennett, 415 S.W.3d at 878 (Johnson, J., concurring). The Legislature
could very well have intended to except it from falling under Article
12.03(d)’s   two-year rule, while still allowing 12.03(d) to operate with
meaningful effect as to non-violent offenses such as aggravated perjury—
answering the concerns of Presiding Judge Keller and the court below. Slip
op. at p. 10 (citing Bennett, 415 S.W.3d at 868-69 (Keller, P.J.,
concurring)).
The only other argument for the two-year conclusion is from
legislative history, which the court of appeals used to anchor its conclusion
that Article 12.01(7) is inapplicable. See id. But there is no anchor. There
is no express evidence in the legislative history, either for or against the
9
three-year rule; there are only unrelated amendments. See Bennett, 415
S.W.3d at 868-69 (Keller, P.J., concurring). So this argument is not from
legislative history but from mere legislative silence. See slip op. at pp. 11,
16. That does not overcome the presumption that the Legislature was
aware of this Court’s   dictum   that   the   limitations   period   had   ‘long   been
three  years’ under Article 12.01(7) when making and amending the laws at
issue. State v. Colyandro, 233 S.W.3d 870, 877-78 (Tex. Crim. App.
2007); State v. Medrano, 67 S.W.3d 892, 896, 901 n.22 (Tex. Crim. App.
2002) (citing Marin v. State, 891 S.W.2d 267, 271-72 (Tex. Crim. App.
1994)).
Since the court of appeals misapplied Boykin, it also skipped over
the opportunity to resolve the issue by simply applying the presumption.
At all times before Fantich, there were just two lines of dicta, only one of
which actually concerns the instant offense, while also stating that its
limitation period is controlled by Article 12.01(7). Accordingly, that
outcome is the presumed legislative intent absent evidence to the contrary.
Colyandro, 233 S.W.3d at 877-78. When it is silence versus a
presumption, the presumption wins.
10
Therefore, Article 12.01(7) controls and the result is three years,
because the Court has long said so, the Legislature knew that, and there is
no direct legislative evidence expressly stating otherwise. See id. If the
Appellee wants to change that, then he needs to have the opportunity to
bring his objection to this Court so that the Court may correctly apply the
law, including a proper Boykin-based statutory construction analysis,
which was respectfully lacking in both the Fantich opinion and the one
below. TEX. R. APP. P. 66.3(b), (c).
11
2) If the limitations period for aggravated assault is governed by
Article 12.03(d), does the lesser-included offense with the greater
limitations period control when the lesser-included offenses of the
aggravated assault include both misdemeanor assault and a felony?
A. A Limitations Period of Two Years for an Aggravated Assault That Also
Constitutes “Lesser  Included”  Felony  Deadly  Conduct  Is  An  Absurd
Result
The Appellee’s first three counts charge aggravated assault with a
deadly weapon, but that conduct is also lesser-included felony deadly
conduct, because he discharged this firearm in the direction of persons in a
vehicle. Honeycutt v. State, 82 S.W.3d 545, 548-49 (Tex. App.—San
Antonio 2002). Felony deadly conduct has a three-year limitations period.
TEX. CODE CRIM. PROC. art. 12.01(7). Under the result below, the less-
grave, lesser-included offense of felony deadly conduct has longer
limitations than its parent crime of aggravated assault. Is this a result the
Legislature could even remotely have intended?
The Prime Directive of statutory interpretation is the avoidance of an
absurd result that the Legislature could not have possibly intended. Muniz
v. State, 851 S.W.2d 238, 244 (Tex. Crim. App. 1993). Judge Johnson’s
Bennett concurrence sensed that a blanket two-year result for all
aggravated ‘non-felony’ assaults will lead to absurd results—and that
concern is vindicated here. Bennett, 415 S.W.3d at 878 (Johnson, J.,
12
concurring). And notwithstanding its two-year result, the Presiding Judge’s
concurrence thought that it   “seems   unlikely   (to   say   the   least)   that   the
legislature would have intended the limitation period for robbery to be
longer than that   for   aggravated   robbery.”   Bennett, 415 S.W.3d at 876
(Keller, P.J., concurring).
The   Presiding   Judge’s   conclusion is equally valid as applied to an
aggravated assault that has felony deadly conduct as a lesser-included
offense. In both situations, limitations on a graver offense would run
before a lesser-included one arising from the same conduct. To borrow the
Presiding   Judge’s   language, it is unlikely, to say the least, that the
Legislature intended for a lesser-included offense, being of a lesser degree,
to have longer limitations than the  greater  “aggravated”  offense.   In other
words, this is an absurd result. The reviewing court should disregard this
result if there is another reasonable way to construe the statutes which
yields no such absurdities. Griffith v. State, 116 S.W.3d 782, 785 (Tex.
Crim. App. 2003).
13
B. The Court of Appeals Improperly Declined to Consider the Absurd
Result
The court of appeals did not apply Griffith because it was convinced
that its construction was sound under expressio unius est exclusio alterius.
Slip op. at pp. 16-17. Whether a construction is reasonable is a different
question than whether a result is. See Aguirre v. State, 22 S.W.3d 463, 465
(Tex. Crim. App. 1999). Therefore, any method of interpretation, including
expressio unius, should be rejected if its use would lead to an absurd result.
See Griffith, 116 S.W.3d at 785
The court of appeals also respectfully misapplied the law by
reasoning that lesser-included offenses pled in an indictment do not exist
until the jury is charged on them. Slip op. at p. 16 (citing Irving v. State,
176 S.W.3d 842, 845 (Tex. Crim. App. 2005)). Actually, the existence of
lesser-included offenses and the tolling of limitations is controlled by the
elements and facts of the greater offense as pled in the indictment. See
Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012); Hall v.
State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). So limitations is
prima facie tolled even if the indictment contains mere “innuendo
allegations” as grounds for tolling. Tita v. State, 267 S.W.3d 33, 38 (Tex.
Crim. App. 2008). Since the court of appeals agreed that “the elements
14
required to prove deadly conduct are the same as those required for
aggravated assault[,]”   the indictment did allege lesser-included deadly
conduct. Honeycutt, 82 S.W.3d at 548. The issue presented was therefore
properly before the court of appeals and was not addressed.
C. The Absurd Result Can Be Avoided By Construing  the  Term  “Primary”
To Refer to the Most Serious Offense
If there was a reasonable way to resolve the conflict that avoids the
absurd result in this case, the court of appeals should have adopted it.
Griffith, 116 S.W.3d at 785. Here is one. Article 12.03(d) states that
limitations  for  an  “aggravated”  offense  is  that  of  its  “primary  crime,”  but it
does not define “primary   crime.” What   was   the   ‘primary’   offense
committed by this Appellee, who fired a gun at three people? When the
only lesser-included offense in an aggravated assault is an assault, that is
easy enough. But in a case in which there are multiple lesser-included
offenses, there is a question about what usage of the term   “primary”   was
intended by the Legislature.6 Recourse to the dictionary to determine
6
“Primary   crime”   cannot   simply   refer   to   whatever   offense   matches   the   title   of   the
instant  offense  minus  the  word  “aggravated,”  not  only  because  the  statute nowhere so
states, but also because there exists at least one offense with no such primary crime—
aggravated   promotion   of   prostitution.   “Though   titled   ‘aggravated’   in   conformity   with
the requirements of Article 12.03(d), the aggravated promotion of prostitution does not
explicitly  incorporate  the  crime  of  promotion  of  prostitution  by  its  Penal  Code  section.”
Bennett, 415 S.W.3d at 873 n.42 (Keller, P.J., concurring). Thus, it is uncertain what
15
which use of the term was intended is therefore justified whether or not the
statute as a whole is ambiguous—and even whether or not Articles
12.03(d) and 12.01(7) even overlap or conflict at all. See Ramos v. State,
303 S.W.3d 302, 307 (Tex. Crim. App. 2009).
‘Primary,’   as   in   ‘primary crime,’ could   mean   “most important[,]
most basic or essential[, or] happening or coming first[.]” Primary,
MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed.).7 In this case, the
first three counts of the indictment state:
[Appellant] did then and there intentionally or knowingly threaten
[Victim] with imminent bodily injury by shooting a firearm into a
vehicle she was exiting, and the defendant did then and there use or
exhibit a deadly weapon, to-wit: a firearm, during the commission of
said  assault…
(CR 1). Discharging firearms in the directions of persons or at their
vehicles was of such primary—as in “most important”—concern for the
Legislature to put such conduct into its own felonious assaultive offense
which is a lesser-included offense of aggravated assault. TEX. PENAL CODE
§ 22.05(b); Honeycutt, 82 S.W.3d at 548-49.
“primary  crime”  means  as  to  that  offense.  Id. Since there are zero primary crimes, that
offense is not controlled by Article 12.03(d). Henson v. State, No. 05-97-01894-CR,
2000 WL 1123509, at *3 (Tex. App.—Dallas   2000,   pet.   ref’d)   (not   designated   for
publication).
7
Available at http://www.merriam-webster.com/dictionary/primary (last accessed May
2, 2015).
16
And by designating felony deadly conduct the  “primary”  (as  in  most
important) lesser-included crime, Article 12.03(d) can be applied to reach a
three-year  result  in  this  case,  because  12.03(d)  provides  that  the  “primary
crime”—most important underlying crime—controls limitations. Id. art.
12.03(d). Between   “merely causing physical contact that another person
will regard as offensive or provocative”   and   felony   deadly   conduct,   the
most important underlying crime in a gunfire aggravated assault is rather
obvious. Bennett, 415 S.W.3d at 878 (Johnson, J., concurring).
This approach harmonizes Judge Johnson’s concerns with the
Presiding Judge’s reasoning: Article 12.03(d) controls and the outcome
under the facts of this case is a three-year limitations period, because the
Presiding Judge agreed that an analogous situation with aggravated
robbery’s   limitations   expiring   before   those   of   its   lesser-included offense
would be an absurd result. Bennett, 415 S.W.3d at 876 (Keller, P.J.,
concurring). Because this result is reasonable, gives effect to both articles,
and avoids the absurd result, the court of appeals should have adopted it.
Griffith, 116 S.W.3d at 785. Discretionary review is warranted to answer
this question of first impression: whether the holding reached by the court
of appeals leads to an absurd result, justifying this solution. TEX. R. APP. P.
66.3(b), (c).
17
PRAYER FOR RELIEF
WHEREFORE, the State of Texas prays that the Court of Criminal
Appeals grant this Petition for Discretionary Review and reverse the
decision of the Court of Appeals.
Respectfully submitted,
ISIDRO R. ALANIZ
DISTRICT ATTORNEY
49TH JUDICIAL DISTRICT
BY:__/s/__________________
David L. Reuthinger, Jr.
Assistant District Attorney for
THE STATE OF TEXAS
Webb and Zapata Counties,
49th Judicial District
1110 Victoria St., Suite 401
Laredo, Texas 78040
(956) 523-4900 / (956) 523-5070 (Fax)
Bar No. 24053936
ATTORNEYS FOR APPELLANT
18
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that the total word count of this
document, less exempt sections, as reported by the Microsoft Word word-
count tool, is 2,870.
__/s/__________________
David L. Reuthinger, Jr.
Attorney for Appellant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 5th day of May, 2015,
the following have been completed:
(1) The petition has been electronically filed with the Clerk of the
Court of Criminal Appeals in accordance with Tex. R. App. P.
68.3 as adopted by the Court of Criminal Appeals and the
required number of hard copies will be mailed.
(2) A legible copy of said petition has been faxed or e-Served to:
Roberto Balli, attorney for the Appellee, P.O. Box 1058,
Laredo, Texas 78042-1058, fax no. (956) 724-5830, email
robertoballi@sbcglobal.net.
(3) A copy has been tendered to the State Prosecuting Attorney.
__/s/__________________
David L. Reuthinger, Jr.
Attorney for Appellant
19
Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-14-00347-CR
The STATE of Texas,
Appellant
v.
/s
Victor Manuel SCHUNIOR, Jr.,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2013-CRM-000371-D1
The Honorable Joe Lopez, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: April 22, 2015
AFFIRMED
The State appeals the trial court’s order dismissing its indictment against Victor Manuel
Schunior, Jr. for aggravated assault as barred by a two-year statute of limitations. The appeal
presents an unsettled issue concerning the appropriate statute of limitations for aggravated assault
and turns on the statutory interpretation of Code of Criminal Procedure articles 12.01(7) and
12.03(d) addressing the limitations periods for undesignated “other felonies” and aggravated
offenses, respectively. TEX. CODE CRIM. PROC. ANN. art. 12.01(7) (West Supp. 2014); id. art.
04-14-00347-CR
12.03(d) (West 2005). We disagree with the State’s statutory interpretation and affirm the trial
court’s order dismissing the indictment.
FACTS AND PROCEDURAL HISTORY
On April 17, 2013, Schunior was indicted on four counts of aggravated assault with a
deadly weapon arising out of a single incident. The indictment alleges that, on or about February
19, 2011, Schunior shot a firearm into a vehicle which was occupied by three individuals and also
struck one of the individuals with a firearm after he exited the vehicle. Thus, the indictment
charged Schunior with four counts of aggravated assault with a deadly weapon, which is a felony.
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011) (a person commits aggravated assault if he
commits the offense of assault as defined by § 22.01, and uses or exhibits a deadly weapon during
the assault); id. § 22.01(a) (West Supp. 2014) (a person commits assault if he intentionally or
knowingly causes bodily injury to another or threatens another with imminent bodily injury).
Schunior filed a motion to dismiss and pre-trial application for habeas corpus relief
asserting the prosecution was barred by limitations. Schunior argued that the interplay between
articles 12.01(7) and 12.03(d) shows that the statute of limitations for aggravated assault is two
years. The State argued that under its interpretation of the same statutes, the limitations period is
three years. The indictment against Schunior was filed two years and two months after the date of
the commission of the offense. After a hearing, the trial court ruled that the statute of limitations
for aggravated assault is two years, and granted Schunior’s request for habeas corpus relief and
dismissed the indictment with prejudice. The State now appeals.
LIMITATIONS PERIOD FOR AGGRAVATED ASSAULT
“The purpose of a statute of limitations in the criminal context is to protect the accused
from having to defend against stale criminal charges and to prevent punishment for acts committed
in the remote past.” Dix and Schmolesky, 40 TEX. PRAC. SERIES § 6:1 (3rd ed. 2011); see
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Hernandez v. State, 127 S.W.3d 768, 772 (Tex. Crim. App. 2004). There is no common-law
requirement of a limitations period; it is solely a legislative creation. Vasquez v. State, 557 S.W.2d
779, 781 (Tex. Crim. App. 1977). An indictment must allege the offense in plain and intelligible
words and must reflect on its face that the prosecution is not barred by limitations. TEX. CODE OF
CRIM. PROC. ANN. art. 21.02(6), (7) (West 2009); Tita v. State, 267 S.W.3d 33, 38 (Tex. Crim.
App. 2008). A defendant may use a pretrial writ of habeas corpus to challenge the trial court’s
jurisdiction if the face of the indictment shows that prosecution is barred by the statute of
limitations. Ex parte Smith, 178 S.W.3d 797, 802 (Tex. Crim. App. 2005). A statute of limitations
is construed strictly against the State and liberally in favor of the defendant. Gallardo v. State,
768 S.W.2d 875, 880 (Tex. App.—San Antonio 1989, pet. ref’d). If it appears the alleged offense
is barred by limitations, then the State must plead and prove factors tolling the limitations period.
Vasquez, 557 S.W.2d at 783.
Article 12.01 of the Code of Criminal Procedure sets out six different limitations periods
for felony offenses, ranging from no limitations for offenses like murder to a three-year limitations
for all felonies for which there is no specific provision in the Code of Criminal Procedure or other
statute. TEX. CODE CRIM. PROC. art. 12.01 (West Supp. 2014). Article 12.03 of the Code of
Criminal Procedure provides four specific rules for determining the limitations period in special
circumstances: criminal attempts; conspiracies and organized criminal activity; criminal
solicitations; and aggravated offenses. Id. art. 12.03 (West 2005). The limitations provisions in
article 12.01 are expressly made subject to the special provisions in article 12.03. Id. art. 12.01
(“Except as provided in Article 12.03, felony indictments may be presented within these limits,
and not afterward . . . .”). The four special provisions in article 12.03 state that the limitations
period is determined by looking to the underlying offense: the offense attempted for criminal
attempt; the “most serious offense that is the object of” the conspiracy or organized criminal
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activity; the felony solicited for criminal solicitation; and the “primary crime” for aggravated
offenses. Id. art. 12.03(a)-(d).
Commentators have acknowledged that article 12.03(d) pertaining to aggravated offenses
“is in conflict with the ‘residuary’ felony limitation period [article 12.01(7)] in at least two
instances”—the two aggravated felonies of aggravated assault and aggravated perjury. Dix and
Schmolesky, 40 TEX. PRAC. SERIES § 6:29 (3rd ed. 2011). For these two aggravated felony
offenses, the underlying primary offenses of assault and perjury are misdemeanors in most
instances. See TEX. PENAL CODE ANN. § 22.01(b), (b–1), (c) (West Supp. 2014) (classifying most
assaults as various classes of misdemeanor, but classifying some as second or third degree felonies
based on the type of victim, e.g., assault against a public servant in the course of official duty is a
third degree felony, while assault involving dating or family violence is a second degree felony);
see also id. § 37.02 (West 2011) (classifying perjury as a Class A misdemeanor). The limitations
period for all misdemeanor offenses is two years. TEX. CODE CRIM. PROC. ANN. art. 12.02 (West
Supp. 2014). Thus, there is arguably a conflict between article 12.03(d)’s special “aggravated
offense” provision which looks to the underlying “primary offense” and yields a two-year
limitations period for aggravated assault and aggravated perjury, and article 12.01(7)’s catch-all
provision for undesignated felonies which yields a three-year limitations period if applied to those
aggravated felonies. The relevant text of the two articles is set forth below:
Article 12.01 states in relevant part:
Except as provided in Article 12.03, felony indictments may be presented within
these limits, and not afterward:
***
(7) three years from the date of the commission of the offense: all other felonies.
TEX. CODE CRIM. PROC. ANN. art. 12.01(7).
Article 12.03 states in relevant part:
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(d) Except as otherwise provided by this chapter, any offense that bears the title
‘aggravated’ shall carry the same limitation period as the primary crime.
TEX. CODE CRIM. PROC. ANN. art. 12.03(d).
As quoted above, article 12.03(d) contains an introductory clause providing an exception
for limitations otherwise provided by Chapter 12. Id. The legislature added this “except” clause
to article 12.03(d) in 1997. In their treatise, Professors Dix and Schmolesky characterize the
“intent of the amendment [as] unclear,” but conclude that, “it seems unlikely it was intended to
change the general rule that an aggravated offense carries the same period as the primary offense
even when the primary offense is a misdemeanor and the aggravated offense is a felony.” See 40
TEX. PRAC. SERIES § 6:29. 1
Statutory Construction Principles
Statutory interpretation is a question of law which we review de novo. Nguyen v. State,
359 S.W.3d 636, 641 (Tex. Crim. App. 2012). In construing a statute, we seek to give effect to
the legislature’s intent and we presume that it intended the entire statutory scheme to be effective.
TEX. GOV’T CODE ANN. § 311.021 (West 2013); Price v. State, 434 S.W.3d 601, 605 (Tex. Crim.
App. 2014). We begin by focusing on the literal text of the statute in an effort to “discern the fair,
objective meaning of that text at the time of its enactment.” Nguyen, 359 S.W.3d at 642; Boykin
v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). In doing so, we also look to the other
provisions within the entire statutory scheme rather than merely the single, discrete provision at
issue. Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012). If the statutory language
is clear and unambiguous, our analysis ends there because “the Legislature must be understood to
1
Professors Dix and Schmolesky note that the 1997 amendment’s addition of the “except” clause to article 12.03(d)
was part of SB 921 which created special limitations periods for sexual assault of a child and aggravated sexual assault
of a child, as well as indecency with a child by contact. 40 TEX. PRAC. SERIES § 6:29. They speculate that the “except”
clause may have been viewed as necessary, under the provisions in effect in 1997, to retain a five-year limitations
period for sexual assault while placing aggravated sexual assault of a child in the special 10-year limitations category.
Id.
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mean what it has expressed, and it is not for the courts to add or subtract from” a statute. Boykin,
818 S.W.2d at 785; Bays v. State, 396 S.W.3d 580, 584-85 (Tex. Crim. App. 2013).
However, if the language is ambiguous or would lead to an absurd result that the legislature
could not have intended, then we consider extra-textual factors to determine the legislature’s intent.
Price, 434 S.W.3d at 607 (considering de novo several extra-textual factors after concluding the
statute was ambiguous); Bays, 396 S.W.3d at 585 (ambiguity exists when reasonably well-
informed persons may understand a statute to have two or more different meanings). Such extra-
textual factors include the legislative history, laws on the same or similar subjects, and the
consequences of a particular interpretation. See TEX. GOV’T CODE ANN. § 311.023 (West 2013);
see also Bays, 396 S.W.3d at 585.
A corollary of statutory construction is that when a general statutory provision conflicts
with a special provision, the court must construe the provisions to give effect to both, if possible.
TEX. GOV’T CODE ANN. § 311.026(a) (West 2013). If the conflict is irreconcilable, however, then
the more specific provision prevails as an exception to the general. Id. § 311.026(b) (West 2013);
see Bays, 396 S.W.3d at 590; see also Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App.
1988) (discussing the in pari materia rule of statutory construction which requires all parts of a
statutory scheme on a same or similar subject to be given effect and construed in harmony with
each other, and further requires a more detailed provision to prevail over a more general provision
in the event of an irreconcilable conflict). There is an exception to this principle of a specific
provision prevailing over a general provision—when the general provision is the later enactment
and the Legislature’s “manifest intent” is that the general provision prevails. TEX. GOV’T CODE
ANN. § 311.026(b); Cheney, 755 S.W.2d at 126.
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State’s Argument For Three-Year Limitations
In its brief, the State proposes three alternative approaches which yield a three-year
limitations period for aggravated assault. First, the State asserts the statutes are not ambiguous
and may be interpreted and harmonized according to their plain language. The State contends the
“all other felonies” language of article 12.01(7) provides the statute of limitations (three years) for
aggravated assault due to the “except” clause in article 12.03(d). The State relies on the text of
article 12.03(d)’s “except” clause which expressly limits the scope of article 12.03(d) to aggravated
offenses not otherwise addressed by Chapter 12. Even though it does not have a designated statute
of limitations under article 12.01, the State asserts aggravated assault is “otherwise addressed” by
article 12.01(7)’s catch-all provision; therefore, article 12.03(d) does not apply. The State further
relies on the line of cases referring to a three-year limitations period for aggravated assault. See,
e.g., Hunter v. State, 576 S.W.2d 395, 399 (Tex. Crim. App. 1979); Ex parte Salas, 724 S.W.2d
67, 68 (Tex. Crim. App. 1987).
Secondly, the State argues in the alternative that the statutes are ambiguous, and we must
therefore look to the legislative history at the time of the 1997 amendment adding the “except”
clause to article 12.03(d), which shows the amendment was made against a backdrop of judicial
decisions stating the limitations period for aggravated assault is three years. The State asserts that
because the legislature is presumed to have knowledge of the judicial opinions applying a three-
year limitations period at the time of the 1997 amendment, it is presumed to have ratified the three-
year limitations period by choosing not to change it. See State v. Colyandro, 233 S.W.3d 870,
877-78 (Tex. Crim. App. 2007) (discussing the principle of legislative ratification of a statutory
construction).
Finally, the State contends that, even if not ambiguous, article 12.03(d)’s language leads to
an absurd result the legislature could not have intended, i.e., a two-year limitations period for the
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violent offense of aggravated assault while a lesser-included offense such as felony deadly conduct
carries a longer, three-year limitations period. See Boykin, 818 S.W.2d at 786 (legislature does
not intend an absurd result); see also Honeycutt v. State, 82 S.W.3d 545, 548-49 (Tex. App.—San
Antonio 2002, pet. ref’d) (holding felony deadly conduct was lesser-included offense of
aggravated assault). The State asserts that, due to the absurdity of a two-year limitations period
for the serious offense of aggravated assault, a three-year limitations period should be applied in
accordance with article 12.01(7)’s catch-all provision and prior judicial opinions.
The State also makes an alternative argument that if article 12.03(d) controls, the legislative
intent was that the “most severe” underlying offense is the “primary crime” that provides the
limitations period for the aggravated offense. Because felony deadly conduct is a lesser-included
offense of aggravated assault and is a more severe offense than simple assault, the State asserts its
three-year limitations period should be the limitations period for aggravated assault, instead of the
two-year limitations period for misdemeanor assault. See TEX. PENAL CODE ANN. § 22.05(b), (e)
(West 2011) (offense under subsection (b) is a third degree felony).
Texas Court of Criminal Appeals
In 2013, the Court of Criminal Appeals itself acknowledged the unsettled nature of the law
as to which limitations period applies to aggravated assault: article 12.03(d)’s limitations period
for crimes characterized as “aggravated” which applies the limitations period of the primary
underlying crime, or the three-year limitations period under the catch-all provision that applies to
all felonies not specifically enumerated within article 12.01. State v. Bennett, 415 S.W.3d 867,
869 (Tex. Crim. App. 2013) (declining to hold counsel deficient for failing to pursue a limitations
defense because the law is unsettled on the limitations period for aggravated assault). The Court
of Criminal Appeals issued Bennett on November 27, 2013 with a six-judge majority, plus three
separate concurring opinions and two dissenting opinions. The majority opinion recognized that
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the court has “not spoken with one voice on the matter” of the limitations period for aggravated
assault. Id. The court referenced its prior opinions in Ex parte Salas and Hunter v. State, noting
it stated in dicta that the limitations period for aggravated assault “has long been three years.” Id.;
see Ex parte Salas, 724 S.W.2d at 68; Hunter, 576 S.W.2d at 399. The court also cited its more
recent opinion in Ex parte Matthews in which it stated the limitations period for aggravated perjury
is two years based on article 12.03(d)’s direction to look to the limitations period for the underlying
offense. Bennett, 415 S.W.3d at 869; see Ex parte Matthews, 933 S.W.2d 134, 136 (Tex. Crim.
App. 1996), overruled on other grounds by Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App.
1998). The majority held that because “the particular statute-of-limitations question presented
here is unsettled,” trial counsel could not be ineffective for failing to take a particular action on an
issue that is unsettled. Bennett, 415 S.W.3d at 869. Because ineffective assistance was the only
issue before the court, the majority concluded it was prevented from resolving the underlying
statute-of-limitations issue. Id.
In a concurring opinion, Presiding Judge Keller agreed with the majority that the law is
unsettled and thus could not support an ineffective assistance claim, but wrote separately to explain
why she believes the applicable limitations period for aggravated assault is two years based on the
plain statutory language and legislative history of article 12.03(d). Id. at 878 (Keller, P.J.,
concurring). Judge Keller first noted that all of the court’s prior caselaw on the limitations period
for aggravated assault is dicta and thus has no precedential value. Id. at 871-72 (stating “we are
essentially operating on a clean slate”). She then applied the principles of statutory construction
to the plain language of the two statutes. Judge Keller looked first at the pre-1997 versions of
article 12.01(7) and 12.03, noting that most of the relevant statutory scheme was in place before
the 1997 amendment to subsection (d) of article 12.03. Id. at 872. Construing the text of article
12.01, Judge Keller stated that the plain meaning of the “[e]xcept as provided in Article 12.03”
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clause that introduces article 12.01 suggests that “the provisions of Article 12.03 trump any
provisions found in Article 12.01.” Id. Noting that the only area of conflict between the two
statutes is with respect to the three-year catch-all provision in article 12.01(7), Judge Keller
concluded, “The import of this [“except”] language, then, is that the catch-all provision applies to
unlisted felonies unless the felony is covered by the provisions of Article 12.03. Because
aggravated assault is an ‘aggravated’ offense, the plain language of the statute, at least prior to
1997, seems to dictate that Article 12.03(d) applies rather than the three-year catch-all provision.”
Id.
Judge Keller then focused on the legislative history and statutory framework in place at the
time of the 1997 amendment, stating that, “The express purpose of adding the ‘except’ phrase to
Article 12.03(d) was to give effect to the explicit ten-years-from-eighteenth-birthday limitation
period for aggravated sexual assault of a child in Article 12.01.” Id. at 875. Keller concluded that,
“Article 12.03(d)’s ‘except’ clause was designed specifically to apply to listed offenses,” not the
residuary offenses covered by article 12.01(7). Id. She further stated it would be “plainly illogical”
to read article 12.03(d)’s “except” clause as applying to the offenses that fall within the three-year
catch-all provision because it “would eviscerate the latter provision [article 12.03(d)] entirely.” Id.
at 875-76 (“Article 12.03(d) would have zero application.”). Keller also stressed the importance
of the fact that the legislature has explicitly set out exceptions for aggravated sexual assault and
aggravated kidnapping in article 12.01, but has not done so for aggravated assault. Id. at 876.
Judge Price wrote separately to explain his concurrence with Judge Keller’s statutory
analysis based on the plain language and legislative history and with her conclusion that the
applicable statute of limitations for aggravated assault is two years under article 12.03(d). Judge
Price’s dissent is based on the belief that trial counsel was ineffective by failing to seek
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dismissal of the indictment based on the two-year limitations bar. Id. at 879 (Price, J.,
concurring/dissenting).
Judge Cochran concurred, agreeing with the majority that trial counsel was not ineffective
because the law is unsettled as to the applicable limitations period for aggravated assault. Id. at
881 (Cochran, J., concurring). Judge Cochran went on to express an opinion that the applicable
limitations period is three years under the “catch-all” provision of article 12.01(7). Id. Judge
Cochran acknowledged that “only the Texas Legislature can finally and firmly resolve this
quandary because Article 12.03(d) does appear to contradict Article 12.01(7).” Id. She suggested
an “easy legislative fix” by changing the names of the offenses from “aggravated” assault and
“aggravated” perjury to “felony” assault and “felony” perjury, which would bring them squarely
within the three-year limitations period provided by article 12.01(7)’s catch-all for undesignated
felonies. Id.
Judge Johnson wrote separately to express agreement with the majority’s result based on
the unsettled state of the law, and to state an opinion that the appropriate statute of limitations for
aggravated assault is three years because a two-year limitations period for the violent offense of
aggravated assault is an absurd result the legislature could not have intended. Id. at 879 (Johnson,
J., concurring). The State relies on Judge Johnson’s statement that, “Surely the legislature did not
intend that a serious, violent felony would have the same statute-of-limitations term as a
misdemeanor that may involve merely causing physical contact that another person will regard as
offensive or provocative.” Id. at 879. 2
2
Judge Meyers dissented, stating his disagreement with the majority’s holding that it was an abuse of discretion for
the trial court to grant a new trial. Meyers stated that because the law is unsettled on the statute of limitations question,
it was proper for the trial court to grant a new trial. Id. at 885 (Meyers, J., dissenting).
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Analysis
As pointed out by the State, we have previously stated that aggravated assault with a deadly
weapon carries a three-year limitations period. See Hernandez v. State, No. 04-97-00956-CR,
1998 WL 374931 (Tex. App.—San Antonio Jul. 8, 1998, no pet.) (not designated for publication).
However, Hernandez merely stated that the statute of limitations is three years and engaged in no
analysis of limitations, citing only the “all other felonies” provision of article 12.01 as authority.
Id. at *1. The single issue in Hernandez was whether the limitations period was tolled. Id. The
opinion engaged in no analysis concerning the applicable limitations period for aggravated assault,
and it was not necessary to the holding in the case; thus, the reference to a three-year limitations
period in Hernandez was merely dicta and is not binding precedent. See Celis v. State, 416 S.W.3d
419, 429 (Tex. Crim. App. 2013) (dicta is not binding). Other courts of appeals have similarly
stated, without any analysis, that the limitations period for aggravated assault is three years based
on article 12.01(7). See, e.g., Lenox v. State, No. 05-10-00618-CR, 2011 WL 3480973, at *7 (Tex.
App.—Dallas Aug. 9, 2011, pet. ref’d) (not designated for publication) (stating limitations is three
years while addressing ineffective assistance claim based in part on failure to challenge indictment
as time-barred); Monroe v. State, 871 S.W.2d 801, 805 (Tex. App.—Houston [14th Dist.] 1994),
abrogated on other grounds by State v. Hight, 907 S.W.2d 845 (Tex. Crim. App. 1995) (referring
to three-year statute of limitations for aggravated assault); Peacock v. State, 690 S.W.2d 613, 616
(Tex. App.—Tyler 1985, no pet.) (stating the statute of limitations for aggravated assault is three
years and citing article 12.01).
Conducting a de novo review of the two statutes at issue and looking first to the plain
language of the statutes, we conclude the statutes are not ambiguous and may be harmonized to
give effect to the entire statutory scheme. Article 12.01 begins with the introductory phrase
“[e]xcept as provided in Article 12.03 . . . .” TEX. CODE CRIM. PROC. ANN. art. 12.01. We are
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bound to give this restrictive, plain language its objective meaning that the provisions of article
12.01 are subject to the provisions of article 12.03. The logic of this reading is confirmed by the
fact that article 12.03(d) is the more specific provision, applying only to “aggravated” offenses,
while article 12.01(7) is a general catch-all provision that applies to “all other felonies” without
designated limitations periods. See Bays, 396 S.W.3d at 590; see also 40 TEX. PRAC. SERIES
§ 6:29 (“In all likelihood . . . the specific provisions of the special rule dealing with aggravated
offenses would control over the more general residuary provision [of article 12.01(7)]; therefore
the misdemeanor two-year period, rather than the felony three-year period, would apply.”).
Further, we agree with Schunior that the “[e]xcept as otherwise provided by this chapter” phrase
added to article 12.03(d) in 1997 logically refers not to the residuary limitations period in 12.01(7),
but to the aggravated offenses that do have a designated limitations period within Chapter 12, to
wit: aggravated sexual assault which has no limitation under article 12.01(1)(B), and aggravated
kidnapping which has a 20-year limitations period from the victim’s 18th birthday under article
12.01(5)(B). See Bennett, 415 S.W.3d at 875 (Keller, P.J., concurring). The legislature is
presumed to have intended both statutes to have effect and our interpretation is to be made in light
of the statutory scheme as a whole. Bays, 396 S.W.3d at 584; Mahaffey, 364 S.W.3d at 913. If,
as the State urges, we construe the “except” phrase of article 12.03(d) as referring to the residuary
“all other felonies” provision of article 12.01(7), it would render article 12.03(d) completely
meaningless. Under the State’s interpretation, article 12.03(d)’s special provision for “aggravated”
offenses, felonies themselves, would always be trumped by the “all other felonies” provision of
article 12.01(7). See Bennett, 415 S.W.3d at 876 (Keller, P.J., concurring). The State’s
interpretation also ignores the introductory phrase in article 12.01 expressly stating that it is subject
to the more specific provisions in article 12.03.
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The Tyler Court of Appeals is the only court that has squarely addressed the interplay
between articles 12.01(7) and 12.03(d) with regard to the appropriate limitations period for
aggravated assault. 3 See Fantich v. State, 420 S.W.3d 287 (Tex. App.—Tyler 2013, no pet.). The
entire Fantich opinion is devoted to analyzing the issue of “whether the limitation period for the
offense of aggravated assault is two or three years.” Id. at 288-89. The court applied the well-
established principles of statutory construction to the statutes’ plain language, and concluded there
is no ambiguity. Id. at 290. The court stressed that aggravated assault does not have a designated
limitations period and that article 12.01 expressly refers to article 12.03. Id. at 289. The court
then applied the language of 12.03(d) to determine the correct limitations period, stating that the
“primary crime” of aggravated assault is assault as defined in Penal Code section 22.01. Id. at
290. The court examined the indictment and concluded that it did not allege any facts that would
make the primary crime a felony assault, as opposed to a misdemeanor assault. Id. at 291. It
therefore concluded that misdemeanor assault was the “primary crime” of the aggravated assault
alleged in the indictment, and that the two-year limitations period for a misdemeanor assault
applied to the aggravated assault under article 12.03(d). Id.
We find the court’s reasoning in Fantich sound and equally applicable to Schunior’s case
in which the facts alleged in the indictment support only misdemeanor assault as the primary
underlying offense, and thus require application of a two-year limitations period pursuant to article
12.03(d). The State attacks Fantich by arguing the opinion failed to undertake the analysis
necessary for a court to overrule its own precedent. We disagree that such analysis is necessary
where the prior “precedent” regarding the limitations period was merely dicta as in our Hernandez
3
An unpublished opinion by the Amarillo Court of Appeals similarly stated that the two-year limitations for
misdemeanor assault applies to aggravated assault under article 12.03(d), but did not engage in any analysis because
the relevant issue was a tolling question. Moore v. State, No. 07-10-00369-CR, 2012 WL 3100904, at *1 (Tex. App.—
Amarillo July 31, 2012, no pet.) (mem. op., not designated for publication).
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opinion. See id. at 293 (noting that in Peacock v. State, 690 S.W.2d 613, 616 (Tex. App.—Tyler
1985, no pet.), it had previously stated the limitations period for aggravated assault is three years
in connection with a different issue and with no analysis, only a citation to article 12.01).
We further disagree with the State that the application of article 12.03(d) to yield a two-
year limitations period for aggravated assault based on misdemeanor assault as the underlying
primary offense is an absurd result. As aggravated perjury and aggravated assault are the only two
felonies that fall into the overlap between the three-year catch-all for “all other felonies” in article
12.01(7) and the two-year special provision for aggravated offenses in article 12.03(d), it is logical
to apply the same analysis. In Ex parte Zain, we held that the offense of aggravated perjury is
governed by a two-year period of limitations under article 12.03(d). Ex parte Zain, 940 S.W.2d
253, 254 (Tex. App.—San Antonio 1997, no pet.) (holding prosecution was time barred and not
tolled during defendant’s absence from the state). The opinion applied article 12.03(d) and stated
that because the charged offense was an aggravated offense, its limitations period was the same as
the primary crime, which was misdemeanor perjury with a two-year limitations period. Id. at 253-
54. The Zain opinion relied solely on the language of article 12.03(d); because no argument was
made concerning article 12.01(7)’s application, we did not address the catch-all felony provision
in article 12.01(7). Zain cites to Ex parte Matthews, an aggravated perjury case addressing tolling
based on a defendant’s absence from the state. Id. at 254 (citing Ex parte Matthews, 933 S.W.2d
134 (Tex. Crim. App. 1996), overruled on other grounds by Proctor v. State, 967 S.W.2d 840
(Tex. Crim. App. 1998)). In Matthews, the Court of Criminal Appeals stated, albeit in dicta, that,
“[i]n the instant cause of aggravated perjury the period is two years, that being the same period as
perjury.” Ex parte Matthews, 933 S.W.2d at 136 (citing article 12.03(d)). After Zain, the Houston
First Court of Appeals similarly held that aggravated perjury has a two-year limitations period
pursuant to article 12.03(d). See State v. Coleman, 962 S.W.2d 267, 268 (Tex. App.—Houston
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[1st Dist.] 1998, pet. ref’d) (citing Ex parte Zain and the same dicta from Ex parte Matthews); see
also Ex parte Tamez, 4 S.W.3d 854, 856 (Tex. App.—Houston [1st Dist.] 1999), aff’d, 38 S.W.3d
159 (Tex. Crim. App. 2001) (same). In addition, Fantich similarly explained why a two-year
limitations period for aggravated assault is not an absurd result by relying on the same line of
aggravated perjury cases. Fantich, 420 S.W.3d at 291-92 (discussing Ex parte Matthews and Ex
parte Zain among other cases). We agree with the Tyler court that “the more persuasive authority
and rationale” is found in the Ex parte Matthews/Ex parte Zain line of cases addressing limitations
for aggravated perjury because “[t]his line of authority gives full effect to [both] articles 12.01 and
12.03, recognizes the interplay between them, applies their plain meaning, and confirms our
conclusion that a two year limitations period for an aggravated offense with a misdemeanor as its
primary crime does not cause an absurd result.” Id. at 293. We therefore conclude that application
of article 12.03(d) to yield a two-year limitations period for aggravated assault in this case is not
an absurd result. 4
Finally, we disagree with the State’s assertion, based on the Bennett concurrences by
Judges Cochran and Johnson, that the legislature intended that the “most serious underlying
offense” should provide the limitations period for an aggravated offense under article 12.03(d).
See Bennett, 415 S.W.3d at 884 (Cochran, J., concurring); see also id. at 878 (Johnson, J.,
concurring). Rather than using the term “primary crime,” the legislature could have specified in
article 12.03(d) that the “most serious offense” underlying the aggravated offense provides the
limitations period. Indeed, it used that exact language with regard to criminal conspiracy and
organized criminal activity in subsection (b). See TEX. CODE CRIM. PROC. ANN. art. 12.03(b)
4
As noted supra, there are instances in which the facts alleged in an aggravated assault indictment will support a
primary offense of felony assault, rather than misdemeanor assault. However, the indictment against Schunior does
not allege any facts that can support felony assault as the primary offense.
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(providing “[t]he limitation period for criminal conspiracy or organized criminal activity is the
same as that of the most serious offense that is the object of the conspiracy or the organized
criminal activity”). Instead, the legislature chose to use the term “primary offense” in subsection
(d) addressing aggravated offenses. See TEX. CODE CRIM. PROC. ANN. art. 12.03(d). Because the
statute itself demonstrates that the legislature recognized a difference between the term “primary
crime” and the term “most serious offense,” the legislature’s express use of the term “primary
crime” in subsection (d) is an express exclusion of the term “most serious offense.” Ex parte
McIver, 586 S.W.2d 851, 856 (Tex. Crim. App. [Panel Op.] 1979) (“It is a well-known rule of
statutory construction . . . that the express mention or enumeration of one person, thing,
consequence, or class is tantamount to an express exclusion of all others.”); see Cornet v. State,
359 S.W.3d 217, 222 (Tex. Crim. App. 2012) (explaining that “when the Legislature desires to
convey a certain level of specificity within a statutory provision, it knows how to do it”) (internal
citations omitted).
Further, we note that the trial court’s dismissal of the State’s indictment arose in the form
of a ruling on Schunior’s pre-trial writ of habeas corpus; no evidence has been presented in this
case. We have only the allegations in the indictment on which to base our consideration of the
“primary crime” underlying the charged aggravated assault with a deadly weapon. The indictment
does not allege any facts that would support felony assault, rather than misdemeanor assault, as
the “primary crime” of the charged aggravated assault. See TEX. PENAL CODE ANN. § 22.01.
Further, the State chose not to charge Schunior with any lesser offense, only aggravated assault
with a deadly weapon. The State argues that because felony deadly conduct constitutes a lesser-
included offense of aggravated assault with a deadly weapon, it should be used as the “primary
crime” for purposes of limitations. See Honeycutt, 82 S.W.3d at 548-49. The determination of
the limitations period for aggravated assault under article 12.03(d) cannot depend on potential
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lesser-included offenses whose submission in the jury charge might be warranted by the facts
developed through a trial. See Irving v. State, 176 S.W.3d 842, 845 (Tex. Crim. App. 2005)
(defendant is entitled to lesser-included offense instruction in jury charge if (1) the requested
charge is a lesser-included offense of the offense charged, and (2) there is some evidence that if
defendant is guilty, he is guilty only of the lesser offense).
CONCLUSION
Construing the plain unambiguous language of the statutes within the context of the entire
statutory scheme, and giving effect to both statutes, we hold that article 12.01(7)’s catch-all
provision is subject to the more specific provisions of article 12.03(d), which results in a two-year
statute of limitations for aggravated assault under the indictment in this case. Therefore, the State’s
prosecution of Schunior for aggravated assault with a deadly weapon is barred by limitations. 5 We
affirm the trial court’s order dismissing the State’s indictment.
Rebeca C. Martinez, Justice
PUBLISH
5
The State has not attempted to plead or prove any factors tolling the limitations period. See Vasquez, 557 S.W.2d at
783.
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