                                 NUMBER 13-18-00463-CR

                                COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI – EDINBURG

                          EX PARTE CHRISTOPHER FLOYD


                       On appeal from the 28th District Court
                            of Nueces County, Texas.



                                           OPINION
               Before Justices Benavides, Longoria, and Perkes
                         Opinion by Justice Longoria

        This Court’s memorandum opinion issued on October 10, 2019, is hereby

withdrawn and the following is substituted therefor.1

        Appellant Christopher Floyd was indicted for several offenses, including

intoxication manslaughter.        See TEX. PENAL CODE ANN. § 49.08(B).                Floyd filed an

application for habeas corpus, arguing that the intoxication manslaughter charges were



        1 After we published our memorandum opinion, the State filed a motion requesting that we publish
the opinion. We grant the State’s motion and issue this published opinion.
barred by the statute of limitations; the trial court denied habeas relief. By one issue on

appeal, Floyd argues that the trial court erred in denying habeas relief. We affirm.

                                     I. BACKGROUND

       As far as this appeal is concerned, the facts are undisputed. On May 19, 2017,

Floyd was indicted (Petition One) for manslaughter, a second-degree felony, criminally

negligent homicide, a state jail felony, and possession of cocaine in an amount of less

than one gram, a state jail felony. See id. §§ 19.04, 19.05; TEX. HEALTH & SAFETY CODE

ANN. § 481.115(b). Count one, relating to manslaughter, stated:

       on or about December 8, 2014, in Nueces County, Texas, [Floyd] did then
       and there recklessly cause the death of an individual, namely, Teresa
       Moody, by causing a vehicle operated by Christopher Floyd to collide with
       a vehicle in which Teresa Moody was an occupant, and/or causing a vehicle
       operated by Christopher Floyd, while Christopher Floyd was under the
       influence of a narcotic and/or narcotics, to collide with a vehicle in which
       Teresa Moody was an occupant.

Count two was identical except it named a different victim: Faye Mosier.

       On December 14, 2017, Floyd was re-indicted (Petition Two), alleging the same

offenses as Petition One but also adding the offense of intoxication manslaughter, a

second-degree felony. See TEX. PENAL CODE ANN. § 49.08(b). Count one in Petition Two

read as follows:

       On or about December 8, 2014, in Nueces County, Texas, [Floyd] did then
       and there operate a motor vehicle in a public place while intoxicated by
       reason of the introduction of alcohol into his body or by reason of the
       introduction of a combination of alcohol and a controlled substance or
       substances, a drug or drugs, or a dangerous drug or drugs into his body,
       and did by reason of such intoxication cause the death of another, namely
       Teresa Moody, by accident or mistake, namely by causing a vehicle
       operated by Christopher Floyd to collide with a vehicle in which Teresa
       Moody was an occupant,

Count two was identical except it listed Mosier as the victim.

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       On July 27, 2018, Floyd filed an “Application for Habeas Corpus and Alternative

Motion to Quash Indictment.”          Floyd asserted that the offense of intoxication

manslaughter has a three-year statute of limitations. Therefore, because Petition Two

was filed more than three years after the alleged offense occurred, the prosecution

against him for intoxication manslaughter was barred by the statute of limitations.

       On August 2, 2018, the State re-indicted (“Petition Three”) Floyd, alleging the same

offenses as Petition Two, but this time including a tolling provision, claiming that the

statute of limitations was tolled. On August 16, 2018, the trial court held a hearing; the

trial court denied habeas relief and denied Floyd’s motion to quash. This appeal ensued.

                                 II. STATUTE OF LIMITATIONS

A.     Standard of Review and Applicable Law

               Our review of a trial court’s habeas corpus ruling should be based
       upon the court’s application of the law to the facts. In reviewing the trial
       court’s ruling, we view the facts in the light most favorable to the ruling, and
       we afford almost total deference to the trial court’s determination of
       historical facts that are supported by the record, especially when the fact
       findings are based on an evaluation of credibility. We afford the same
       amount of deference to the trial court’s rulings on “application of law to fact
       questions” that involve an evaluation of credibility. If resolution of those
       ultimate questions turns on an application of legal standards, we review
       those determinations de novo.

State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)

(internal citations omitted). Additionally, “[w]e will uphold the trial court’s decision on any

theory of law applicable to the case.” See Ex parte Nelson, 546 S.W.3d 742, 747 (Tex.

App.—Houston [1st Dist.] 2018, no pet.).

       Generally, a pre-trial writ of habeas corpus is only appropriate in very limited

circumstances. See Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). One

such instance is to challenge the jurisdiction of the court by showing that “any prosecution
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is barred by the statute of limitations.” Id. Habeas relief should be granted if the face of

the petition shows that the prosecution would be barred by limitations. See id.

B.     Analysis

       In his sole issue, Floyd argues that the trial court erred in denying habeas relief

because the two counts of intoxication manslaughter are barred by the statute of

limitations. According to Floyd, intoxication manslaughter has a three-year statute of

limitations and Petition Two, which was the first petition to allege intoxication

manslaughter, fell outside the three-year window. The State argues that intoxication

manslaughter does not have a limitations period. We agree with the State.

       Chapter 12 of the Texas Code of Criminal Procedure lists the relevant statutes of

limitations for various felonies. See TEX. CODE CRIM. PROC. ANN. art. 12.01. For “murder

and manslaughter,” there is no limitation. Id. art. 12.01(1)(a). For “all other felonies,”

there is a three-year statute of limitations. Id. art. 12.01(8). Floyd argues that intoxication

manslaughter falls within the catch-all provision of Article 12.01(8) because intoxication

manslaughter is not specifically referenced anywhere in Chapter 12. We have found no

court of criminal appeals cases discussing whether intoxication manslaughter falls under

the “no limitations” period for manslaughter and murder or the general three-year

limitations period for “all other felonies.” However, the Texas Court of Criminal Appeals

has addressed an analogous argument. In Demouchette v. State, 731 S.W.2d 75, 80

(Tex. Crim. App. 1986), the defendant argued that capital murder fell under the “all other

felonies” section of Chapter 12 because it was not specifically referenced. However, the

Court held that “[c]apital murder is a species of murder and as such is provided for

by Article 12.01(1)” rather than the “all other felonies” provision. Id.

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       Recently, the court of appeals in San Antonio addressed Floyd’s exact argument.

See Gallegos v. State, No. 04-18-00806-CR, 2019 WL 4280071, at *2 (Tex. App.—San

Antonio Sept. 11, 2019, no pet. h.) (mem. op., not designated for publication). Citing to

Demouchette, our sister court concluded that “intoxication manslaughter is encompassed

within the term manslaughter in article 12.01(1)(A) and is subject to no limitations period.”

Id.

       Additionally, we note that for double jeopardy purposes, the court of criminal

appeals has held that intoxication manslaughter and manslaughter are “the same

offense.” Bigon v. State, 252 S.W.3d 360, 372 (Tex. Crim. App. 2008). Even though

Bigon did not specifically address the statute of limitations, we find its analysis insightful.

In reaching its conclusion, the court observed that prior to 1994, intoxication manslaughter

was in the same chapter as manslaughter because it “was considered an alternative way

to commit manslaughter.”       Id. at 371.     The court opined that moving intoxication

manslaughter to Chapter 49 of the Texas Penal Code was “largely for housekeeping

purposes” because despite being moved to a chapter about intoxication-related offenses,

intoxication manslaughter is ultimately still “an offense that addresses homicide.” Id. The

court also concluded that despite being moved to Chapter 49, intoxication manslaughter

“kept the title of manslaughter, indicating that it is still considered a homicide.” Id.

       Therefore, we conclude that intoxication manslaughter is a species of

manslaughter and is thus provided for by Article 12.01(1) rather than article 12.01(8). See

TEX. CODE CRIM. PROC. ANN. art. 12.01(1), (8); Bigon, 252 S.W.3d at 372; Demouchette,

731 S.W.2d at 80; see also Gallegos, 2019 WL 4280071, at *2. Accordingly, intoxication

manslaughter is not subject to any limitations period, and the trial court did not err in

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denying habeas relief. See TEX. CODE CRIM. PROC. ANN. art. 12.01(1); Collazo, 264

S.W.3d at 126.

       Alternatively, even if we assume that intoxication manslaughter falls under the

three-year statute of limitations, “a prior indictment tolls the statute of limitations under

Article 12.05(b) for a subsequent indictment when both indictments allege the same

conduct, same act, or same transaction.” Hernandez v. State, 127 S.W.3d 768, 774 (Tex.

Crim. App. 2004); see TEX. CODE CRIM. PROC. ANN. art. 12.05(b) (“The time during the

pendency of an indictment, information, or complaint shall not be computed in the period

of limitation.”). Floyd argues that the present case is similar to Marks v. State, 560 S.W.3d

169, 171 (Tex. Crim. App. 2018). However, we find Marks to be distinguishable. In

Marks, the court of criminal appeals concluded that the State’s original indictment did not

toll the limitations period for the offenses alleged in the amended indictments. See id.

The State’s original indictment alleged the defendant provided security services as an

unlicensed guard company.        The amended indictments alleged that the defendant

accepted employment to carry a firearm without being personally commissioned as a

security officer. See id. However, the court concluded that it was “not clear at all that the

same transaction, much less the same act or conduct, is being alleged.” Id.

       In contrast, in the present case, the original manslaughter counts in Petition One

alleged the same victims that were killed as a result of the same car collision as alleged

in Petitions Two and Three. Even though there would be a difference in proving whether

the collision involved recklessness or intoxication, it is clear that each of the indictments

are referring to a singular transaction—a car crash that resulted in two deaths. Therefore,

the State’s petition in this case would have tolled the statute of limitations.         See

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Hernandez, 127 S.W.3d at 774. Accordingly, the trial court did not err in denying habeas

relief. See Ex parte Smith, 178 S.W.3d at 801.

       We overrule Floyd’s sole issue.

                                     III. CONCLUSION

       We affirm the judgment of the trial court.

                                                       NORA L. LONGORIA
                                                       Justice


Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
14th day of November, 2019.




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