                                                                                           PD-0526-15
                                                                          COURT OF CRIMINAL APPEALS
                                                                                          AUSTIN, TEXAS
                                                                        Transmitted 12/10/2015 9:10:02 PM
                                                                          Accepted 12/11/2015 8:54:01 AM
                                                                                           ABEL ACOSTA
                  IN THE COURT OF CRIMINAL APPEALS                                                 CLERK
                        OF THE STATE OF TEXAS
                          ___________________

                                 No. PD-0526-15
                              ___________________
                                                                          December 11, 2015

                           THE STATE OF TEXAS,
                                 Appellant,

                                           v.

                    VICTOR MANUEL SCHUNIOR, JR.,
                              Appellee

                              ___________________

                         APPEAL FROM WEBB COUNTY

                           Appeal No. 04-14-00347-CR
                             In the Fourth Court of Appeals

                    Trial Court No. 2013-CRM-000371-D1
                     In the 49th District Court of Webb County, Texas
                              ___________________

                            BRIEF FOR APPELLEE
                             ___________________

ROBERTO BALLI                                            CLAUDIA V. BALLI
SBN: 00795235                                            SBN: 24073773
BALLI LAW OFFICE                                         BALLI LAW OFFICE
P.O. Box 1058                                            P.O. Box 1058
Laredo, Texas 78042-1058                                 Laredo, Texas 78042-1058
Tel: (956) 712-4999                                      Tel: (956) 712-4999
Fax: (956) 724-5830                                      Fax: (956) 724-5830

Attorneys for Appellee
                           IDENTITY OF PARTIES

     Pusuant to the provisions of Rule 38.21(a), Texas Rules of Appellate

Procedure, a complete list of names of all parties to this action and counsel are as

follows:

Appellant:               The State of Texas

Attorney for Appellant: 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:                Victor Manuel Schunior, Jr.

Attorney for Appellee: Roberto Balli
                       BALLI LAW OFFICE
                       P.O. Box 1058
                       Laredo, Texas 78042-1058
                       Tel: (956) 712-4999
                       Fax: (956) 724-5830

                         Claudia V. Balli	
                         BALLI LAW OFFICE
                         P.O. Box 1058
                         Laredo, Texas 78042-1058
                         Tel: (956) 712-4999
                         Fax: (956) 724-5830




	                                        ii	
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES ........................................................................................ ii

TABLE OF CONTENTS ........................................................................................ iii

INDEX OF AUTHORITIES .................................................................................... v

STATEMENT OF THE CASE ................................................................................ 1

STATEMENT REGARDING ORAL ARGUMENT .............................................. 1

ISSUES PRESENTED ............................................................................................. 1

As per Appellee:

        Whether the harmonious application of Articles 12.01, 12.02, and
        12.03(d) of the Texas Code of Criminal Procedure yield a two-year
        statute of limitations for aggravated assault when its primary crime is
        misdemeanor assault ....................................................................................... 2

As per the State:

        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 ................................................................................................... 1

        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
           aggravated assault include both misdemeanor and a felony?................ 1, 2

SUMMARY OF THE ARGUMENT ....................................................................... 2

        Plain language construction of the statutes yields a two-year statute of
        limitations for aggravated assault .................................................................. 3

        In the event that the Court deems the statutory language ambiguous, a
        review of the legislative history establishes a two-year statute of
        limitations ...................................................................................................... 4

	                                                           iii	
        A two-year statute of limitations is not absurd, it is what the statute
        mandates ........................................................................................................ 5

ARGUMENT AND AUTHORITY .......................................................................... 6
    I. Laying the Foundation ............................................................................... 6
          A. Standard of Review ........................................................................ 6
          B. The Purpose of the Statute of Limitations ...................................... 6
          C. Statutory Construction.................................................................... 8

        II. The Statute of Limitations for Aggravated Assault is Governed by
           the Interplay and Harmonious Reading of Articles 12.01 and
           12.03(d) .................................................................................................... 9
              A. The State’s Argument that Article 12.01(7) Governs the
                  Statue of Limitations for Aggravated Assault is Flawed .............. 9
              B. The Plain Language Analysis Conclusively Establishes that
                  Articles 12.01 and 12.03(d) are Not Ambiguous ......................... 11
                    1. The Tyler Court of Appeals and the San Antonio
                          Court of Appeal Analyze the Plain Language of
                          Articles 12.01 and 12.03(d) and Reached the
                          Inevitable Conclusion that the Statutory Language is
                          Not Ambiguous .................................................................. 16
                    2. Appellee’s Interpretation Considers Both, Article
                          12.01 and Article 12.03(d), Gives Full Effect to
                          Every Word, and Concludes a Two-Year Statute of
                          Limitations for Aggravated Assault With The
                          Primary Crime of Misdemeanor Assault ........................... 21
              C. The Colyandro/Marin Presumption of Legislative
                   Ratification is Not Applicable to Dicta ..................................... 22

        III. The Statute of Limitations for Aggravated Assault is Governed
             by Article 12.03(d) and Thus Carries the Same Statute of
             Limitations as The Primary Crime. There is No Lesser-Included
             Offense Called On by Article 12.03(d) ................................................ 25
              A. Appellee Schunior is Not Advocating for All Aggravated
                 Assaults to Have a Two-Year Statute of Limitations .................. 25
              B. The Primary Crime is Not the Same as The Lesser-Included
                 Offense; The Statute of Limitations to be Assigned to
                 Aggravated Assault is That of Its Primary Crime ........................ 26




	                                                           iv	
                 C. The In Pari Materia Doctrine Yields a Two-Year Statute of
                    Limitations for Aggravated Assault With a Misdemeanor
                    Assault as The Primary Crime ..................................................... 33
                 D. A Two-Year Statute of Limitations is Mandated by the
                    Statute and is Not Absurd ............................................................ 37
                 E. A Two-Year Statute of Limitations Protects the People and
                    is Mandated by the Presumption That Statutes of
                    Limitations Are to Be Construed in Favor of The Defendant...... 37

        IV. Texas Court of Criminal Appeals ......................................................... 39
             A. Unsettled Law .............................................................................. 39
                   1. State v. Bennett.................................................................... 39
                   2. Ex parte Matthews .............................................................. 42
                   3. Ex parte Salas ..................................................................... 43
                   4. Hunter v. State .................................................................... 43
                   5. Ex parte County .................................................................. 44

        V.   Courts of Appeals’ Holdings Yield a Two-Year Statute of
             Limitations When Aggravated Assault Has A Misdemeanor
             Assault As The Primary Crime ............................................................ 45
              A. First Court of Appeals of Texas, Houston.................................... 45
                     1. Ex parte Tamez ................................................................... 45
                     2. State v. Coleman ................................................................. 46
              B. Fourth Court of Appeals of Texas, San Antonio .......................... 46
                     1. State v. Schunior ................................................................. 46
                     2. Ex parte Zain....................................................................... 47
              C. Seventh Court of Appeals of Texas, Amarillo ............................. 47
                     1. Moore v. State ..................................................................... 47
              D. Twelfth Court of Appeals of Texas, Tyler ................................... 48
                     1. Fantich v. State ................................................................... 48
                     2. Compton v. State ................................................................. 48
        VI. Conclusion ............................................................................................ 48
        VII. Prayer .................................................................................................. 51

CERTIFICATE OF COMPLIANCE ...................................................................... 52

CERTIFICATE OF SERVICE ............................................................................... 52




	                                                         v	
                                  INDEX OF AUTHORITIES

Statutes

TEX. CODE CRIM. PROC. art. 12.01. .................................................................. passim

TEX. CODE CRIM. PROC. art. 12.01(2)(C). ............................................................... 38

TEX. CODE CRIM. PROC. art. 12.01(3)(D). ............................................................... 37

TEX. CODE CRIM. PROC. art. 12.01(3)(F). ............................................................... 37

TEX. CODE CRIM. PROC. art. 12.01(4)(A). ............................................. 31, 37, 38, 44

TEX. CODE CRIM. PROC. art. 12.01(4)(B). ............................................................... 30

TEX. CODE CRIM. PROC. art. 12.01(5)(B) .................................................................. 4

TEX. CODE CRIM. PROC. art. 12.01(7). ....................................... 12, 13, 21, 25, 35, 40

TEX. CODE CRIM. PROC. art. 12.02. ..................................................... 1, 2, 12, 13, 14

TEX. CODE CRIM. PROC. art. 12.03 ................................................................... passim

TEX. CODE CRIM. PROC. art. 12.03(a) ......................................................... 31, 32, 33

TEX. CODE CRIM. PROC. art. 12.03(b) ..................................................................... 28

TEX. CODE CRIM. PROC. art. 12.03(d) .............................................................. passim

TEX. CODE CRIM. PROC. art. 21.02(6) ....................................................................... 7

TEX. CODE CRIM. PROC. art. 27.08(2) ....................................................................... 7

TEX. CODE CRIM. PROC. art. 37.09. ................................................................... 30, 31

TEX. GOV’T CODE § 311.021 ............................................................................ 18, 20

TEX. GOV’T CODE § 311.023 ............................................................................ 19, 20



	                                                    vi	
TEX. GOV’T CODE § 311.026(a). ................................................................. 33, 34, 35

TEX. GOV’T CODE § 311.026(b) .................................................................. 34, 35, 36

TEX. PENAL CODE § 20.03 ................................................................................ 37, 38

TEX. PENAL CODE § 20.04 ................................................................................ 37, 38

TEX. PENAL CODE § 22.01 ................................................................................ 27, 50

TEX. PENAL CODE § 22.01(b) and (b-1) .................................................................. 25

TEX. PENAL CODE § 22.02 .......................................................................... 12, 27, 50

TEX. PENAL CODE § 22.04 ................................................................................ 30, 31

TEX. PENAL CODE ANN. § 29.02 ....................................................................... 37, 38

TEX. PENAL CODE ANN. § 29.03 ........................................................... 30, 31, 37, 38

TEX. PENAL CODE § 30.02(a)(3). ...................................................................... 29, 30

TEX. PENAL CODE § 32.21 ...................................................................................... 38

TEX. PENAL CODE § 32.31 ...................................................................................... 37

TEX. PENAL CODE § 32.32 ...................................................................................... 37

Cases

Arredondo v. State, 406 S.W.3d 300 (Tex. App.—San Antonio 2013). ................ 13

Bays v. State, 396 S.W.3d 580 (Tex. Crim. App. 2013). ............ 9, 10, 11, 18, 19, 40

Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). .................... 6, 16, 18, 19

Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App. 2011)....................................... 6

Compton v. State, 202 S.W.3d 416 (Tex. App.—Tyler 2006, no pet.). .................. 48



	                                                     vii	
Cornet v. State, 359 S.W.3d 217, 222 (Tex. Crim. App. 2012) ............................. 29

Ex parte County, 601 S.W.2d 357 (Tex. Crim. App. 1980). ........................ 2, 44, 45

Ex parte Matthews, 933 S.W.2d 134
   (Tex. Crim. App. 1996) (en banc). ............................................................. passim

Ex parte McIver, 586 S.W.2d 851, 856
(Tex. Crim. App. [Panel Op.] 1979) ................................................................. 28, 29

Ex parte Salas, 724 S.W.2d 67 (Tex. Crim. App. 1987)
   (en banc) .......................................................................................... 22, 39, 40, 43

Ex parte Tamez, 4 S.W.3d 854 (Tex. App.—Houston [1st Dist.] 1999),
   aff’d, 38 S.W.3d 159 (Tex. Crim. App. 2001). .................................................. 45

Ex parte Zain, 940 S.W.2d 253
   (Tex. App.—San Antonio 1997, no pet.). ..................................................... 2, 47

Fantich v. State, 420 S.W.3d 287
  (Tex. App.—Tyler 2013, no pet.). ......................................... 3, 17, 19, 20, 21, 48

Gallardo v. State, 768 S.W.2d 875 (Tex. App.—San Antonio 1989, pet. ref’d) ..... 7

Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) ............................ 9, 10

Hunter v. State, 576 S.W.2d 395 (Tex. Crim. App. 1979) ......................... 22, 39, 44

Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) ................................ 26

Jones v. State, 396 S.W.3d 558 (Tex. Crim. App. 2013) ....................................... 34

Krause v. State, 405 S.W.3d 82 (Tex. Crim. App. 2013) ......................................... 6

Mahaffey v. State, 364 S.W.3d 908 (Tex. Crim. App. 2012) ................................. 10

Mitchell v. State, 137 S.W.3d 842 (Tex. App.—Houston [1st Dist.] 2004) ........... 29

Mobil Oil. Corp. v. Higginbotham, 436 U.S. 618, 625 (1978) ................................. 9



	                                                        viii	
Moore v. State, No. 07-10-00369-CR, 2012 WL 3100904 (Tex. App.—Amarillo
Jul. 21, 2012, no pet.) (mem. op., not designated for publication) ......................... 47

Price v. State, 434 S.W.3d 601 (Tex. Crim. App. 2014) .......................................... 9

Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998). ................................. 7, 8

Seals v. State, 187 S.W.3d 417 (Tex. Crim. App. 2005). ......................................... 9

Shipp v. State, 331 S.W.3d 433 (Tex. Crim. App. 2011). ...................................... 10

Smith v. State, 789 S.W.2d 590 (Tex. Crim. App. 1990) ................................. 16, 17

State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013) ........................ 39, 40, 44

State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013)
   (Cochran, J. concurring) .................................................................................... 36

State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013)
   (Keller, P.J., concurring) ............................................................................ passim

State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013)
   (Price, J. dissenting)........................................................................................... 42

State v. Coleman, 962 S.W.2d 267 (Tex. App.—Houston [1st Dist.] 1998,
   pet. ref’d) ........................................................................................................... 46

State v. Colyandro, S.W.3d 870 (2007) ...................................................... 16, 22, 24

State v. Schunior, 467 S.W.3d 79
   (Tex. App.—San Antonio 2015, pet. granted) ........................................... passim

State v. Vasilas, 187 S.W.3d 486 (Tex. Crim. App. 2006) ..................... 8, 19, 36, 37

Tita v. State, 267 S.W.3d 33 (Tex. Crim. App. 2008) .............................................. 7

Toussie v. United States, 397 U.S. 112 (1970) ......................................................... 7

United States v. Granderson, 511 U.S. 39 (1994) (Kennedy, J., concurring). ......... 8



	                                                            ix	
United States v. Locke, 471 U.S. 84 (1985) .............................................................. 8

Vasquez v. State, 557 S.W.2d 779 (Tex. Crim. App. 1977). .............................. 7, 29

Treatises

W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 18.5(a) (2nd ed.1992)................ 8

GEORGE E. DIX & JOHN M. SCHMOLESKY, 40 TEX. PRAC. CRIMINAL
  PRACTICE AND PROCEDURE (3d ed. 2011).................................. 22, 23, 24, 35, 36




	                                                   x	
                         STATEMENT OF THE CASE

       This case is a State’s appeal regarding the Fourth Court of Appeals’

affirming the Trial Court’s dismissal of Appellee Victor Manuel Schunior’s four-

count indictment for aggravated assault, felony charges, due to a violation of the

statute of limitations applicable to said offense. State v. Schunior, 467 S.W.3d 79,

90 (Tex. App.—San Antonio 2015, pet. granted). The State filed a petition for

discretionary review, which this Honorable Court granted.          Appellee hereby

presents to this Honorable Court this his brief responding to the State’s arguments.

              STATEMENT REGARDING ORAL ARGUMENT

       Oral argument has been declined in this case.

                              ISSUES PRESENTED

       Appellee presents to the Court that there is one and only one issue before

this Honorable Court, and that is whether the harmonious application of Articles

12.01, 12.02, and 12.03(d) of the Texas Code of Criminal Procedure establish a

two-year statute of limitations for aggravated assault when its primary crime is

misdemeanor assault.

       However, Appellant presents this Court that there is two issues in this

appeal:

    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?



	                                        1	
    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 and a felony?

      Appellee addresses the issues below.

                      SUMMARY OF THE ARGUMENT

      Appellee Schunior respectfully submits to this Court that the applicable

statute of limitations for aggravated assault is two years, pursuant to Texas Code of

Criminal Procedure Articles 12.01, 12.02, and 12.03(d), when its primary crime is

a misdemeanor assault. There is case law, both dicta and holdings, from different

courts of appeals and from this Honorable Court. See, e.g., Ex parte County, 601

S.W.2d 357, 357 (Tex. Crim. App. 1980) (holding that the statute of limitations for

aggravated robbery is five years based on it primary crime, robbery; this is

pursuant to Article 12.03(d)); Schunior, 467 S.W.3d at 90; Ex parte Zain, 940

S.W.2d 253, 152–54 (Tex. App.—San Antonio 1997, no pet.) (holding that the

felony offense of aggravated perjury has a two-year statute of limitations by virtue

of applying art. 12.03(d) of the Texas Code of Criminal Procedure because its

primary crime is misdemeanor perjury with a two-year statute of limitations); Ex

parte Matthews, 933 S.W.2d 134, 136 (Tex. Crim. App. 1996) (en banc) (stating,

in dicta, that based on articles 12.01, 12.02, and 12.03, aggravated perjury has a



	                                        2	
two-year statute of limitations due to article 12.03(d) specifying that “an offense

titled ‘aggravated’ carries the same period as primary crime); Fantich v. State, 420

S.W.3d 287, 293 (Tex. App.—Tyler 2013, no pet.) (holding that a two-year statute

of limitations applies to aggravated assault because it’s primary crime is

misdemeanor assault and stating that a two-year statute of limitations “for an

aggravated offense with a misdemeanor as its primary crime does not cause an

absurd result”.)

      This Court and every Court of Appeals in Texas that has addressed the issue

of the statute of limitations of an aggravated offense, has held that Article 12.03(d)

controls in determining the statute of limitations of an aggravated offense that is

not listed in the comprehensive list of Article 12.01.

Plain language construction of the statutes yields a two-year statute of

limitations for aggravated assault

      The catch-all felony provision of Article 12.01(7) of the Texas Code of

Criminal Procedure imposes a three-year statute of limitations on all felonies that

are not explicitly enumerated on article 12.01 and not otherwise provided for in

article 12.03 of the Texas Criminal Code. The plain language of article 12.01

specifically gives deference to article 12.03. Therefore, by virtue of applying the

plain language of both statutes, article 12.03 trumps Article 12.01. Article 12.01

states that the statutes of limitations imposed pursuant to Article 12.01 are



	                                         3	
applicable only if article 12.03 does not provide a statute of limitations.

Consequently, because article 12.03(d) imposes a statute of limitations for

aggravated offenses and aggravated assault is not an enumerated offense anywhere

in Chapter 12, specifically article 12.01 dealing with felonies, the applicable statute

of limitations for aggravated assault is the statute of limitations of its primary

crime. In the present case, aggravated assault has a two-year statute of limitations

because its primary crime is a misdemeanor assault. The statutory language is

plain and unambiguous: The statute of limitations for aggravated assault is two

years when its primary crime is a misdemeanor assault.

In the event that the Court deems the statutory language ambiguous, a review of

legislative history establishes a two-year statute of limitations

      The application of articles 12.01 and 12.03(d) is not ambiguous. These

articles are harmoniously applied and these mandate a two-year statute of

limitations when an aggravated offense that is not enumerated in 12.01 has a

misdemeanor primary crime. Nonetheless, where the Court deems the statutes to

be ambiguous, legislative history and legislative intent dictate a two year statute of

limitations in such scenario.

      Article 12.03(d) was last amended in 1997. The legislature has since then

amended article 12.01 and added another aggravated offense to the enumerated list

in 12.01, aggravated kidnapping. TEX. CODE CRIM. PROC. art. 12.01(5)(B); State v.



	                                         4	
Bennett, 415 S.W.3d 867, 876 (Tex. Crim. App. 2013) (Keller, P.J., concurring).

However, the legislature has not done so with aggravated assault.              Had the

legislature intended a different result than a two-year statute of limitations for

aggravated offenses, including aggravated assault with a misdemeanor primary

crime, the legislature would have specified so.          Further, had the legislature

intended aggravated assault not be included in 12.03(d), the legislature would have

specifically excluded it, or enumerated it in article 12.01 just like it has specifically

enumerated other aggravated offenses.

      Thus, in addition to plain meaning text, legislative history and legislative

intent also mandate a two-year statute of limitations for any aggravated offense

that is not enumerated in article 12.01 and that has a misdemeanor offense as its

primary crime.

A two-year statute of limitations is not absurd; it is what the statute mandates

      The State contends that giving full effect to the statute as enacted by the

legislature leads to an absurd result because aggravated assault is a violent crime.

This argument is baseless and inaccurate. There are ample examples where the

Texas Code of Criminal Procedure imposes shorter statutes of limitations for an

offense than for its lesser-included offense. Further, there are ample examples of

violent offenses with shorter statutes of limitations than the limitations period for

non-violent offenses.



	                                          5	
        Therefore, there is nothing absurd nor unprecedented to applying the

statutory language as written. The plain meaning of the statutory language is not

ambiguous and the result is not absurd. Aggravated assault has a two-year statute

of limitations pursuant to Articles 12.01, 12.02, and 12.03(d) when its primary

crime is a misdemeanor assault.

                        ARGUMENT AND AUTHORITY

       I. LAYING THE FOUNDATION

A. STANDARD OF REVIEW

       The standard of review for statutory construction, a question of law, is de

novo review. Krause v. State, 405 S.W.3d 82, 85 (Tex. Crim. App. 2013). The

interpretation of statutes requires the courts to effectuate the collective intent of the

legislature who enacted the statute. Id.; Clinton v. State, 354 S.W.3d 795, 800

(Tex. Crim. App. 2011) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.

App. 1991)). In determining the collective intent of the legislature, the courts first

examine the literal text, which offers the best means to determine the fair, objective

meaning of the statutory text at the time of the enactment. Clinton, 354 S.W.3d at

800.

B. THE PURPOSE OF THE STATUTE OF LIMITATIONS

       An indictment is required to indicate, on its face, a “date anterior to the

presentment of the indictment, and not so remote that a prosecution of the offense



	                                          6	
is barred by limitation.” TEX. CODE CRIM. PROC. art. 21.02(6); Tita v. State, 267

S.W.3d 33, 37 (Tex. Crim. App. 2008). Where the indictment is defective on its

face in that it is barred by the period of limitations, the defendant may object to the

substance of the indictment and have it dismissed. TEX. CODE CRIM. PROC. art.

27.08(2); Tita, 267 S.W.3d at 37.

      It is essential to note that we must start with the premise that a statute of

limitations is to be construed liberally in favor of the defendant.          Ex parte

Matthews, 933 S.W.2d at 136 (citing Vasquez v. State, 557 S.W.2d 779, 783 (Tex.

Crim. App. 1977)); see also Schunior, 467 S.W.3d. at 81 (“A statute of limitations

is construed strictly against the State and liberally in favor of the defendant.”)

(citing Gallardo v. State, 768 S.W.2d 875, 880 (Tex. App.—San Antonio 1989,

pet. ref’d). The statute of limitations of Chapter 12 of the Texas Code of Criminal

Procedure protects “individuals from criminal prosecution after the passage of an

express period of time following the commission of an offense.” Proctor v. State,

967 S.W.2d 840, 843 (Tex. Crim. App. 1998). In other words, “The purpose of a

statute of limitations is to limit exposure to criminal prosecution to a certain fixed

period of time following the occurrence of acts the legislature has decided to

punish by criminal sanctions.” Toussie v. United States, 397 U.S. 112, 114 (1970).

The statute of limitations is a procedural rule to safeguard the defendant from

charges and prosecution for alleged offenses whose facts are so distant in time that



	                                         7	
they may be obscured and unclear and to minimize the danger of punishment. Id.;

Proctor, 967 S.W.2d at 843 (citing W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE

§ 18.5(a) (2nd ed.1992)). “The statute of limitations is an act of grace for the

benefit of potential defendants, a voluntary surrendering by the people of their

right to prosecute. . . . [It] is a procedural rule . . . enacted basically for the benefit

of defendants.” Proctor, 967 S.W.2d at 843.

C. STATUTORY CONSTRUCTION

      The statutory construction is a question of law, which a court must answer

by first analyzing the plain language of the statute to determine its meaning. State

v. Vasilas, 187 S.W.3d 486, 488 (Tex. Crim. App. 2006). “The seminal rule of

statutory construction is to presume that the legislature meant what it said.”

Vasilas, 187 S.W.3d at 489 (citing Seals v. State, 187 S.W.3d 417, 421 (Tex. Crim.

App. 2005)). It is beyond the province of any court to alter the application of a

statute to what a court believes is the preferred result.              United States v.

Granderson, 511 U.S. 39, 68 (1994) (Kennedy, J., concurring). “[T]he fact that

[the legislature] might have acted with greater clarity or foresight does not give

courts a carte blanche to redraft statutes in an effort to achieve that which [the

legislature] is perceived to have failed to do.” United States v. Locke, 471 U.S. 84,

95 (1985). As the Supreme Court stated, “There is a basic difference between

filling a gap left by [the legislature’s] silence and rewriting rules that [the



	                                           8	
legislature] has affirmatively and specifically enacted.”      Id. (citing Mobil Oil.

Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)). The legal theory of statutory

construction is based on the understanding that if the legislature erroneously

enacted a statute, it would amend or repeal the statute in the following session.

Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005). Thus, we presume

the legislature intended the statutory scheme to be effective in its entirety. State v.

Bennett, 415 S.W.3d 867, 872 (Keller, P.J., concurring) (citing Bays v. State, 396

S.W.3d 580, 584 (Tex. Crim. App. 2013)).

      In other words, when the statutory language is clear and unambiguous, the

statutory construction is based on the plain language of the statutes. If the statutory

language is deemed to be “ambiguous or would lead to an absurd result that the

legislature could not have intended, then” extratextual factors are considered to

determine the legislature’s intent. Schunior, 467 S.W.3d at 83 (citing Price v.

State, 434 S.W.3d 601, 607 (Tex. Crim. App. 2014).

    II. THE STATUTE OF LIMITATIONS FOR AGGRAVATED ASSAULT
        IS GOVERNED BY THE INTERPLAY AND HARMONIOUS
        READING OF ARTICLE 12.01 AND 12.03(d)

A. THE STATE’S ARGUMENT THAT ARTICLE 12.01(7) GOVERNS THE STATUTE OF
LIMITATIONS OF AGGRAVATED ASSAULT IS FLAWED

      The State’s argument proposes that Article 12.03(d) be completely ignored

and that Article 12.01(7) be applied to aggravated assault. The State’s argument

yields an absurd result in that the “legislature is presumed to have intended both

	                                         9	
statues to have effect.” See Schunior, 467 S.W.3d at 87 (citing Bays, 396 S.W.3d

at 584; Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012)). An

interpretation that concludes that Article 12.01(7) controls over Article 12.03(d)

ignores the introductory “except” clause of Article 12.01. Schunior, 467 S.W.3d at

87–88. The introductory phrase in Article 12.01 reads as follows, “Except as

provided in Article 12.03, . . . ” This phrase “expressly states that [Article 12.01]

is subject to the more specific provisions in [A]rticle 12.03.” Id. (emphasis in

original).

      The State cites to Shipp v. State, 331 S.W.3d 433 (Tex. Crim. App. 2011) for

the proposition that in statutory construction and plain language analysis the

exclusion of phrases is not acceptable. (State Brief at 9). However, it is the State

who wants the Court to ignore the “except” clause in Article 12.01 and to ignore

Article 12.03(d) in its entirety. Our interpretation of the statutory construction

gives effect to all and every word in both articles at issue in this case.

      The State did not cite a single case from any court of appeals that has held

that the statute of limitations for any aggravated offense is determined by the

felony catch-all provision in Article 12.01(7). The State did not cite a single case

from any court of appeals that has held that the statute of limitations for aggravated

assault with misdemeanor assault as the primary crime is determined by the felony

catch-all provision in Article 12.01(7). The State did not cite a single case from



	                                          10	
this Court that has held that the statute of limitations for any aggravated offense is

determined by the felony catch-all provision in Article 12.01(7) instead of the

special aggravated offenses Article 12.03(d). The reason being that there is no

such a case.

      What your Honorable Court will find in this, Appellee’s brief, is that there

are cases from different courts of appeals holding that the statute of limitations for

aggravated offenses that are not specifically enumerated in Article 12.01 are

governed by Article 12.03(d).

B. A PLAIN LANGUAGE ANALYSIS CONCLUSIVELY ESTABLISHES THAT ARTICLES
12.01 AND 12.03(d) ARE NOT AMBIGUOUS

      As noted above, the first step in statutory construction is to look at the plain

language of the statute with the presumption that the legislature’s intent is that the

entire statutory scheme is effective. It follows then that Articles 12.01 and 12.03

must be construed in accordance with the plain language meaning unless their

language is ambiguous or the result is absurd. Bennett, 415 S.W.3d at 872 (Keller,

P.J., concurring). In doing so, we presume the legislature intended the statutory

scheme to be effective in its entirety.     Id. (citing Bays, 396 S.W.3d at 584).

Although Articles 12.01 and 12.03 appear to be conflict in regards to Article

12.01’s three-year “catch-all” provision, the reality is: There is no conflict at all.

Id.




	                                         11	
      Chapter 12 does not enumerate or specifically list a statute of limitations for

aggravated assault. Aggravated assault is a felony. TEX. PENAL CODE § 22.02. In

this case, Appellee Schunior is charged with four counts of aggravated assault

whose primary crime is misdemeanor assault. [1 CR 12–14]. Article 12.01(7)

states, “Except as provided in Article 12.03,” the statute of limitations is “three

years from the date of the commission of the offense: all other felonies;” while

Article 12.03(d) unambiguously states that, “Except as otherwise provided in this

chapter, any offense that bears the title ‘aggravated’ shall carry the same limitation

period as the primary crime.” TEX. CODE CRIM. PROC. arts. 12.01(7) & 12.03(d).

This statutory language inevitably leads to the conclusion that because aggravated

assault is not provided for anywhere in Chapter 12, aggravated assault carries the

same statute of limitations of its primary crime, misdemeanor assault in this case;

thus, rendering the statute of limitations to be two years in the case of Appellee

Schunior (“An indictment or information for any [] misdemeanor may be presented

within two years from the date of the commission of the offense, and not

afterward.” TEX. CODE CRIM. PROC. art. 12.02.

      The statutes under scrutiny in this case are Article 12.01, Article 12.02, and

Article 12.03(d) of the Texas Code of Criminal Procedure. A harmonious and

thorough reading of the statutes lead to the conclusion that Article 12.03(d)




	                                        12	
controls and aggravated assault carries a statute of limitations of two years, given

its primary crime is misdemeanor assault. The statutes read as follows:

      12.01
      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.

      12.02
      An indictment or information for any [] misdemeanor may be
      presented within two years from the date of the commission of the
      offense, and not afterward.

      12.03(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.

      In analyzing the statutory language, it is imperative to read the text of the

statute as written, without adding or deleting words. Arredondo v. State, 406

S.W.3d 300, 307 (Tex. App.—San Antonio 2013) (stating that “Courts must apply

penal statutes exactly as they read.”). Therefore, it is important to note that Article

12.01, before enumerating limitation periods for specific offenses, reads: “Except

as provided in Article 12.03, felony indictments may be presented within these

limits, and not afterward.” TEX. CODE CRIM. PROC. art. 12.01 (emphasis added).

This language specifically gives deference to Article 12.03, the specific statute,

over Article 12.01, the general statute with a “catch all” provision. See Bennett,

	                                         13	
415 S.W.3d at 872 (Keller, P.J., concurring) (stating the “provisions of Article

12.03 trump any provisions found in Article 12.01.”).

	     Article 12.03(d) reads “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. art. 12.03(d) (emphasis added). It is

apparent from the plain language of Articles 12.01 and 12.03(d) that the statutes

are intended to be read and applied harmoniously.           The language of Article

12.03(d) excepts from its application any aggravated offense specifically

enumerated anywhere in Chapter 12, including Article 12.01.              Chapter 12,

specifically Article 12.01, lists some aggravated offenses with their respective

limitations period. However, aggravated assault, just like aggravated perjury, is

not enumerated in Article 12.01. TEX. CODE CRIM. PROC. art. 12.01. Further, the

introductory language in Article 12.01, “[e]xcept as provided in Article 12.03,”

commands that Article 12.03 controls over Article 12.01 with respect to aggravated

offenses not specifically enumerated in 12.01(1)−(6). Inevitably, Article 12.03(d)

is to be applied to aggravated assault as it is applied to aggravated perjury: Neither

of these aggravated offenses is specifically listed in Article 12.01, or anywhere else

in Chapter 12.

      In other words, as stated by the Fourth Court of Appeals,

      The “[e]xcept as otherwise provided by this chapter” phrase added to
      [A]rticle 12.03(d) in 1997 logically refers not to the residuary

	                                         14	
      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 . . . under [A]rticle 12.01(1)(B), and
      aggravated kidnapping . . . under [A]rticle 12.01(5)(B).

Schunior, 467 S.W.3d at 87; see also Bennett, 415 S.W.3d at 875 (Keller, P.J.,

concurring). Consequently, the plain language analysis gives full effect to every

word in both articles, including the “except” clauses in both articles: Article

12.01(7) applies to those felonies not enumerated in 12.01(1)–(6) and to those

felonies not provided for in Article 12.03 (pursuant to the “except” clause in

Article 12.01); Article 12.03(d) applies to those aggravated offenses that not

enumerated in Article 12.01(1)–(6).

      It is also clear and unambiguous that Article 12.03(d) is specific as to which

offense is to be used to determine the statute of limitations of an aggravated

offense under 12.03(d): “any offense that bears the title ‘aggravated’ shall carry

the same limitation period as the primary crime.” TEX. CODE CRIM. PROC. art.

12.03(d) (emphasis added). Article 12.03(d) uses the word “the” to modify the

phrase “primary crime.” Therefore, a charged aggravated offense may have only

ONE primary crime.




	                                       15	
      1. The Tyler Court of Appeals and the San Antonio Court of Appeals
      Analyzed the Plain Language of Articles 12.01 and 12.03(d) and
      Reached the Inevitable Conclusion that the Statutory Language is Not
      Ambiguous

      The State argues in its brief (State’s Brief at 5) that the Fantich court and the

Schunior court “built [their reasoning] on a presumption that the statutes are

unambigious.” Both Courts, the Tyler Court of Appeals in Fantich and the San

Antonio Court of Appeals in Schunior, determined, through their analysis, that the

statutes at issue are not ambiguous and thus, the plain language meaning is to be

applied.   As stated by the Boykin Court, “if the meaning of the statutory

text . . . should have been plain to the legislators who voted on it . . . we ordinarily

give effect to that plain meaning.” Boykin, 818 S.W.2d at 785 (citing Smith v.

State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990)). Further, the Boykin Court

stated that “ ‘[w]here the statute is clear and unambiguous, the Legislature must be

understood to mean what it has expressed, and it is not for the courts to add or

subtract from such a statute.’ ” Id. (internal citations omited). Even if the courts

had “not invoked Boykin’s rules for statutory construction when discerning the

meaning” of the statutes, that does not mean the courts’ approaches did not

conform to Boykin’s mandate.” State v. Colyandro, S.W.3d 870, 877 (2007).

However, note that both, the Fantich court and the Schunior court invoked

Boykin’s rules.




	                                         16	
      The Fantich court concluded,

      [T]hat the more persuasive authority and rationale is found in Ex parte
      Matthews, Compton v. State, Ex parte Tamez, and Ex parte Zain. This
      line of authority gives full effect to articles 12.01 and 12.03,
      recognizes the interplay between them, applies their plain meaning,
      and confirms our conclusion that a two year statute of limitation
      period for an aggravated offense with a misdemeanor as its primary
      crime does not cause an absurd result.

Fantich, 420 S.W.3d at 293 (emphasis added). Although the State argues (State’s

Brief at 6), that the Fantich court disregarded part of the statutory language, the

quote cited above clearly demonstrates that the Fantich court concluded that the

statutes are unambiguous and thus must be given full effect by applying their plain

meaning and recognizing the interplay between both Articles 12.01 and 12.03. In

addition, the Fantich court specifically stated that there was no need to resort to

extratextual sources because the application and interpretation of the statutes does

not require it and does not yield an absurd result. Id. at 291. Giving full effect to

every word of both articles means exactly that. While Article 12.03(d) applies to

those aggravated offenses that are not enumerated, Article 12.01(7) applies to those

felonies that are not enumerated in 12.01(1)–(6) and that are not provided for in

Article 12.03. Thus, the plain language analysis as applied to Articles 12.01 and

12.03 gives full effect to every word in both articles.

      Similarly, the Schunior court conducted a detailed analysis of both articles

12.01 and 12.03 and held that “[c]onstruing the plain unambiguous language of the



	                                         17	
statutes within the context of the entire statutory scheme, . . . 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” that charges Schunior. Schunior, 467 S.W.3d at 90. The Schunior

court specifically explained that, “[i]n 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.” Id. at 83 (citing TEX. GOV’T CODE § 311.021). The

Schunior court clearly stated that the “ ‘Legislature must be understood to mean

what it has expressed, and it is not for the courts to add or subtract from’ ” a statute

when said statutory language is clear and unambiguous. Id. (quoting Boykin, 818

S.W.2d at 785; Bays, 396 S.W.3d at 584–85). The Fourth Court of Appeals clearly

stated, “Conducting a de novo review of the two statutes at issue and looking first

to the plain meaning language of the statutes, we conclude the statutes are not

ambiguous and may be harmonized to give effect to the entire statutory scheme.”

Schunior, 467 S.W.3d. at 87 (emphasis added).           “We are bound to give this

restrictive, plain language [of Article 12.01’s introductory phrase] its objective

meaning that the provisions of article 12.01 are subject to the provisions of article

12.03.” Id. (emphasis in original). As the Fantich court, the court in Schunior,

gave full effect to every word in the statutory scheme at issue, including the




	                                         18	
“except” clauses in both articles. Both Article 12.01 and Article 12.03 apply to

different offenses and the language is clear and unambiguous.

      Therefore, both the Tyler Court of Appeals in Tyler and the San Antonio

Court of Appeals in Schunior, first analyzed the statutory language at issue to

determine its meaning, as instructed by this Court in Vasilas. See Vasilas, 187

S.W.3d at 488. Further, the Fantich court and the Schunior court, followed the

direction of this Court in Boykin, which directs the lower courts that when the

statutory language is clear and unambiguous, the courts are not to add or subtract

words from it, but rather the “Legislature must be understood to mean what it

expressed.” Boykin, 818 S.W.2d at 785; Bays, 396 S.W.3d at 584–85; Vasilas, 187

S.W.3d at 488; see Schunior, 467 S.W.3d at 83; see also Fantich, 420 S.W.3d at

293. It is important to note that pursuant to the Government Code, a court may

consider a wide array of factors when construing a statute, regardless of whether

said statute is ambiguous or not. TEX. GOV’T CODE § 311.023.

      In construing a statute, whether or not the statute is considered
      ambiguous on its face, a court may consider among other matters the:

      (1) object sought to be attained;
      (2) the circumstances under which the statute was enacted;
      (3) legislative history;
      (4) common law or former statutory provisions, including laws on the
           same or similar subjects;
      (5) consequences of a particular construction;
      (6) administrative construction of the statute; and
      (7) title (caption), preamble, and emergency provision.



	                                       19	
TEX. GOV’T CODE § 311.023 (emphasis added). Therefore, the State’s argument

suggesting that the reasoning of the Fourth Court of Appeals in Schunior and the

reasoning of the Twelfth Court of Appeals in Fantich are flawed is baseless and

incorrect. Both courts analyzed the statutory language at issue and conformed to

both codified and case law in reaching their conclusion that aggravated assault

carries a two-year limitation period when its primary crime is misdemeanor

assault, pursuant to Article 12.03(d) and Article 12.01. The Fantich court and the

Schunior court both analyzed the plain language of the articles and considered the

canons of construction, such as the presumptions of legislative intent as outlined in

Section 311.021 of the Texas Government Code, and the statute construction aids

as permitted by Section 311.023 of the Texas Government Code. See Fantich, 420

S.W.3d at 289 (stating that the court applied the canons of construction in the

interpretation of the statutes); see also Schunior, 467 S.W.3d at 83 (discussing the

factors considered by the court, such as the presumption that legislature’s intent is

to give effect to the entire statutory scheme, the fair and objective meaning at the

time of enactment, other provisions within the entire statutory scheme,

consequences of a particular interpretation, laws on same or similar subjects, and

legislative history).

      The State further argues that the Fantich court and the Schunior court

“stopped considering the meanings of the statutes” when they reached a plain



	                                        20	
language analysis with a two-year statute of limitations in this case. (State’s Brief

at 7).    The States argues that the courts did not consider a three-year result.

(State’s Brief at 7). The State’s arguments are incorrect. As previously noted

above, both courts fully analyzed the plain language meaning of the statutory

language, addressed dicta favoring a three-year statute of limitations, and

considered the consequences of a three-year statute of limitation’s interpretation.

Both Fantich and Schunior clearly present a full analysis of the plain language

analysis. Fantich, 420 S.W.3d at 290–93; Schunior, 467 S.W.3d at 86–90.

         2. Appellee’s Interpretation Considers Both, Article 12.01 and Article
         12.03(d), Gives Full Effect to Every Word, and Concludes a Two-Year
         Statute of Limitations for Aggravated Assault With The Primary Crime
         of Misdemeanor Assault

         As previously expressed above, Article 12.01(7) applies to those offenses

that are not enumerated in Article 12.01(1)–(6) and that are not provided for in

Article 12.03. In turn, Article 12.03(d) applies to aggravated offenses that are not

enumerated in 12.01(1)–(6) and that are not provided for anywhere else in Chapter

12. Thus, this statutory scheme of Articles 12.01 and 12.03 is clear and not

ambiguous: Every word and both “except” clauses are given full effect to discern

the meaning and application of both Articles 12.01 and 12.03(d).




	                                        21	
C. THE COLYANDRO/MARIN PRESUMPTION              OF   LEGISLATIVE RATIFICATION       IS
NOT APPLICABLE TO DICTA

      The State claims that Article 12.01 and Article 12.03(d) are ambiguous. The

State cites Colyandro for the proposition that an ambiguous statute that is

interpreted by the courts may be ratified by the legislature through the legislature’s

action or inaction. (State’s Brief at 19–20). The State further argues that the

legislature’s action or inaction ratified this Court’s dicta in Hunter and Ex parte

Salas that the statute of limitations for aggravated assault is three years. See

Hunter v. State, 576 S.W.2d 395 (Tex. Crim. App. 1979); see also Ex parte Salas,

724 S.W.2d 67 (Tex. Crim. App. 1987) (en banc). Notably, there is no authority

for the proposition that the legislative ratification theory relied on by the State

applies to dicta.

      The State fails to consider this Court’s dicta in Ex parte Matthews, reasoning

that the statute of limitation for an aggravated offense not enumerated in Article

12.01 is the limitation period called for in Article 12.03(d).         See Ex parte

Matthews, 933 S.W.2d at 134. Ex parte Matthews, was the most recent of the

three dicta relative to the 1997 legislative session in which Article 12.03(d) was

amended as cited by the State. It is imperative to note though, that the 1997

Legislature also amended Article 12.01 to enumerate, for the first time, aggravated

offenses, thus the 1997 amendment to Article 12.03(d) is believed to have been

designed to give full effect to both Article 12.01 and Article 12.03(d). DIX &

	                                        22	
SCHMOLESKY, 40 TEX. PRAC. CRIMINAL PRACTICE AND PROCEDURE § 6:29 (3d ed.

2011).

      The State, quoting Professors Dix and Schmolesky, argues that “[a]

construction of a statute, made or suggested by the courts, has been treated as

approved or affirmed by the legislature if, after the construction, the legislature met

and failed to change the statute.”       40 TEX. PRAC., CRIMINAL PRACTICE          AND

PROCEDURE § 2:33. This argument fails in its entirety for two reasons.

      First, Professors Dix and Schmolesky, specifically discussed the 1997

Legislature amendment to both Article 12.01 and Article 12.03(d).                 They

specifically state “[t]he 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.”             40 TEX. PRAC.

CRIMINAL PRACTICE AND PROCEDURE § 6:1. Further, the Professors conclude that

although the 1997 amendment to Article 12.03(d) is unclear, “it seems unlikely

[that the 1997 Legislature] 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.” 40 TEX. PRAC.

CRIMINAL PRACTICE      AND    PROCEDURE § 6:29.        In reaching this conclusion,

Professors Dix and Schmolesky note that the 1997 amendment’s addition to the

“except” clause to article 12.03(d) was part of SB 921 which created special



	                                         23	
limitations periods for sexual assault of a child and aggravated sexual assault of a

child, as well as indecency with a child by contact. See Schunior, 467 S.W.3d at

81–83.   (citing 40 TEX. PRAC. CRIMINAL PRACTICE           AND   PROCEDURE § 6:29).

Therefore, Professors Dix and Schmolesky posit that the “except” clause of Article

12.03(d) may have been viewed as necessary, under the provisions in effect in

1997 to retain the five-year limitations period for sexual assault while placing

aggravated sexual assault of a child in the special ten-year limitations category. Id.

(citing 40 TEX. PRAC. CRIMINAL PRACTICE AND PROCEDURE § 6:29).

      Second, the ratification through the legislature’s action or inaction of courts’

interpretations refers to courts’ holdings rather than courts’ dictum.              See

Colyandro, 233 S.W.3d at 877–78 (discussing the Court’s holdings in two cases in

reference to the legislature’s ratification of same). Thus, Appellee respectfully

presents to the Court that the ratification through the legislature’s action or inaction

does not apply to dictum.

      Assuming arguendo, that ratification through the legislature’s action or

inaction applies to court’s dictum as argued by the State, the State’s argument still

fails. That is because the most recent dicta by the Court at the time of the 1997

amendment to Chapter 12 was made was that the statute of limitations for

aggravated offenses not enumerated in Article 12.01 are governed by Article

12.03(d). See Ex parte Matthews, 933 S.W.2d 134 at 134 (stating that the statute



	                                         24	
of limitations for aggravated perjury is two years pursuant to Article 12.03(d)

because perjury is the primary crime, which is a misdemeanor).

      Interestingly, the State does not explain why the legislative ratification

theory does not apply to the 2015 legislative session. In 2014 the Court held in

Bennett that the issue of the statute of limitations for aggravated assault was

unsettled. However, the legislature, having met in for the 2015 legislative session,

took no action to correct the unsettled law.

      III. THE STATUTE OF LIMITATIONS FOR AGGRAVATED
      ASSAULT IS GOVERNED BY ARTICLE 12.03(d) AND THUS
      CARRIES THE SAME STATUTE OF LIMITATIONS AS THE
      PRIMARY CRIME. THERE IS NO LESSER-INCLUDED OFFENSE
      CALLED ON BY ARTICLE 12.03(d).

A. APPELLEE SCHUNIOR IS NOT ADVOCATING FOR ALL AGGRAVATED
ASSAULTS TO HAVE A TWO-YEAR STATUTE OF LIMITATIONS

      Article 12.03(d) states that aggravated offenses carry the same statute of

limitations as its primary crime. TEX. CODE CRIM. PROC. arts. 12.03(d). Thus,

only those aggravated offenses, including aggravated assaults, that have a

misdemeanor as its primary crime, have a two-year statute of limitations. In other

words, those aggravated assaults that have a primary crime of a felony assault, as

defined in sections 22.01(b) and (b-1) of the Texas Penal Code, have a three-year

statue of limitations. This is because the statute of limitations for felony assault,

the primary crime would be three years pursuant to Article 12.01(7). Thus, there is

no absurd result, if the primary crime of the aggravated offense is a misdemeanor

	                                         25	
assault, then the statute of limitations is two years; if the primary crime of the

aggravated offense is a felony assault, the statute of limitations is three years.

      In the present case, Appellee Schunior was charged with aggravated assault

with a misdemeanor assault as its primary crime. Thus, the statute of limitations in

this specific scenario is two years pursuant to Articles 12.01, 12.02, and 12.03(d)

of the Texas Code of Criminal Procedure.

B. THE PRIMARY CRIME IS NOT THE SAME AS A LESSER-INCLUDED OFFENSE;
THE STATUTE OF LIMITATIONS TO BE ASSIGNED TO AGGRAVATED ASSAULT IS
THAT OF ITS PRIMARY CRIME

      It is important to note that the State did not raise this argument regarding the

lesser-included offense to the trial court, having effectively waived the argument.

Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) (“[E]xcept for

complaints involving fundamental constitutional systematic requirements . . . all

other complaints . . . are [forfeited] by failure to comply with Rule 33.1.”).

      Nonetheless, Appellee responds to the State’s argument. Article 12.03(d)

refers to “the primary crime.” As noted above, the use of the modifier “the” means

that a charged offense has only one primary crime. Despite this, the State is asking

the Court to substitute “the primary crime” for any potential “lesser-included

offense” definition that would be the most beneficial to the State. Although this

would serve to give the State more time to complete its task of obtaining an




	                                          26	
indictment, it is contrary to any opinion in this Court and to any opinion from the

courts of appeals.

      The State argues that the legislature’s intent is that if Article 12.03(d)

controls, then the statute of limitations for the most severe underlying offense

applies. (State’s COA Brief at 12). The States also argues that “it is not possible

to limit Article 12.03(d)’s reference to ‘the primary crime’ to refer only” to that

primary crime, that it must refer to lesser-included offenses. (State’s COA Brief at

51). Both of these statements lack support and contradict the unambiguous and

simple statutory language of Articles 12.01 and 12.03(d).

      An aggravated offense, in its elements, defines its primary crime by either

referring to the Penal Code section of the primary crime or by listing the elements

of the primary crime, and it further adds an aggravating element that makes said

primary crime an aggravated offense. See TEX. PENAL CODE § 22.02 (stating that

an aggravated assault is an “assault as defined in § 22.01 and” one of two

aggravating factors). In other words, an aggravated offense has the elements of the

primary crime plus the aggravating element. In Schunior, the primary crime is

assault class C misdemeanor plus the aggravating element of the use of a deadly

weapon. (Indictment, 1 CR 12–14).

      Although Schunior “could . . . be charged with felony deadly conduct,” like

the State argues, the truth is that Schunior was not charged with felony deadly



	                                       27	
conduct. (State’s Brief at 33). Again, Schunior was charged with aggravated

assault, with misdemeanor assault as the primary crime.

      The legislature intended exactly what the statute reads, that an aggravated

offense not enumerated in chapter 12 carries the same statute of limitations as its

primary crime. TEX. CODE CRIM. PROC. art. 12.03(d). There is only one primary

crime to a charged aggravated offense, the statute is clear: “any offense titled

‘aggravated’ shall carry the same limitation period as the primary crime.”

      By contrast, the legislature specified in article 12.03(b) that the statute of

limitations for a criminal conspiracy or an organized criminal activity is that of the

“most severe serious offense” that is the object of the conspiracy or the organized

activity. TEX. CODE CRIM. PROC. art. 12.03(b). Thus, had the legislature intended

the same application of “most severe” or “most serious” lesser-included offense,

the legislature would have so provided in article 12.03(d). See Schunior, 467

S.W.3d at 89–90 (“Because the statute itself demonstrates that the legislature

recognized a difference between the term ‘primary crime’ and the term ‘most

serious offense,’ the legislatures’ express use of the term ‘primary crime’ in

subsection (d) is an express exclusion of the term ‘most serious offense.’ ”)

(internal   citations   omitted).    “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



	                                          28	
Schunior, 467 S.W.3d at 90 (quoting Ex parte McIver, 586 S.W.2d 851, 856 (Tex.

Crim. App. [Panel Op.] 1979). “[W]hen the Legislature desires to convey a certain

level of specificity within a statutory provision, it knows how to do it.” See

Schunior, 467 S.W.3d at 90 (quoting Cornet v. State, 359 S.W.3d 217, 222 (Tex.

Crim. App. 2012).

      Thus, the lesser-included offense and most serious offense arguments are

contradictory to what the law specifically states and to the rules of statutory

construction. In addition, it is important to note that the State’s arguments for a

three-year statute of limitations contradict the fact that statutes of limitations are to

be “construed strictly against the State and liberally in favor of the defendant.”

Vasquez, 557 S.W.2d at 783; Schunior, 467 S.W.3d at 81.

      Further, there are ample examples where the Texas Code of Criminal

Procedure imposes shorter statutes of limitations for an offense than for the statute

of limitations for its lesser-included offense. For example, this occurs sometimes

with burglaries pursuant to Texas Penal Code § 30.02(a)(3) that involve the

commission of a felony or the attempt to commit a felony. Mitchell v. State, 137

S.W.3d 842, 845–47 (Tex. App.—Houston [1st Dist.] 2004). Although Mitchell

involved burglary with a statute of limitations of five years and its lesser-included

offense of aggravated assault, which has a two-year statute, the Mitchell court held

that the alleged felony or attempted felony is a lesser-included offense of burglary.



	                                          29	
The Mitchell court relies on Article 37.09 which States that an offense is a lesser-

included offense if: (1) it is established by proof of the same or less than all the

facts required to establish the commission of the offense charged. Id.; TEX. CODE

CRIM. PROC. art. 37.09.

      Using the reasoning in Mitchell, several potential felonies or attempted

felonies that could be alleged as part of a burglary charge have longer statutes of

limitations than burglary. Burglary of a Habitation carries a five-year statute of

limitations to Article 12.01(4)(B). TEX. CODE CRIM. PROC. art. 12.01. These

felonies, using the rationale of Mitchell would be lesser-included offenses, with

longer statutes of limitations than the greater offense (burglary). This would also

be true for aggravated robbery pursuant to section 29.03(a)(3)(A) involving injury

to an elderly or disabled person. TEX. PENAL CODE § 29.03. This is true because

aggravated robbery by injuring an elderly or disabled person carries all of the same

elements as injury to an elderly. TEX. CODE CRIM. PROC. art. 37.09; TEX. PENAL

CODE § 22.04; TEX. PENAL CODE § 29.03.

      The following are some examples of offenses that have lesser-included

offenses with longer statutes of limitations than the greater-offense:

 Greater Offense      Limitations Period Lesser-Included          Limitations Period
Burglary of           5 years,           Murder                   No Limitations
Habitation            Art. 12.01(4)(B)                            Art. 12.01(1)(A)
Burglary of           5 years,           Attempted                No Limitations
Habitation            Art. 12.01(4)(B)   Murder                   Art. 12.01(1)(A)
                                                                  Art. 12.03(a)

	                                         30	
Burglary of   5 years,                  Manslaughter         No Limitations
Habitation    Art. 12.01(4)(B)                               Art. 12.01(1)(A)
Burglary of   5 years,                  Sexual Assault       No Limitations
Habitation    Art. 12.01(4)(B)                               Art. 12.01(1)(B)
Burglary of   5 years,                  Attempted Sexual     No Limitations
Habitation    Art. 12.01(4)(B)          Assault              Art. 12.01(1)(B)
                                                             Art. 12.03(a)
Burglary of   5 years,                  Aggravated           No Limitations
Habitation    Art. 12.01(4)(B)          Sexual Assault       Art. 12.01(1)(B)
Burglary of   5 years,                  Attempted            No Limitations
Habitation    Art. 12.01(4)(B)          Aggravated           Art. 12.01(1)(B)
                                        Sexual Assault       Art. 12.03(a)
Burglary of   5 years,                  Indecency with a     No Limitations
Habitation    Art. 12.01(4)(B)          Child                Art. 12.01(1)(E)
Burglary of   5 years,                  Attempted            No Limitations
Habitation    Art. 12.01(4)(B)          Indecency with a     Art. 12.01(1)(E)
                                        child                Art. 12.03(a)
Burglary of   5 years,                  Theft of an Estate   10 Years
Habitation    Art. 12.01(4)(B)                               Art. 12.01(2)(A
Burglary of   5 years,                  Attempted Theft      10 Years
Habitation    Art. 12.01(4)(B)          of an Estate         Art. 12.01(2)(A)
                                                             Art. 12.03(a)
Burglary of   5 years,                  Theft by a Public    10 Years
Habitation    Art. 12.01(4)(B)          Servant              Art. 12.01(2)(B)
Burglary of   5 years,                  Attempted Theft      10 Years
Habitation    Art. 12.01(4)(B)          by a Public          Art. 12.01(2)(B)
                                        Servant              Art. 12.03(a)
Burglary of   5 years,                  Forgery              10 Years
Habitation    Art. 12.01(4)(B)                               Art. 12.01(2)(C)
Burglary of   5 years,                  Attempted            10 Years
Habitation    Art. 12.01(4)(B)          Forgery              Art. 12.01(2)(C)
                                                             Art. 12.03(a)
Burglary of   5 years,                  Injury to Elderly    10 Years
Habitation    Art. 12.01(4)(B)          Disabled Person,     Art. 12.01(2)(D)
                                        First Degree
Burglary of   5 years,                  Attempted Injury     10 Years
Habitation    Art. 12.01(4)(B).         to Elderly           Art. 12.01(2)(C)
                                        Disabled Person      Art. 12.03(a)
Burglary of   5 years,                  Sexual Assault       10 Years


	                                 31	
Habitation    Art. 12.01(4)(B)                             Art. 12.01(2)(E)
Burglary of   5 years,                 Attempted Sexual    10 Years
Habitation    Art. 12.01(4)(B)         Assault             Art. 12.01(2)(E)
                                                           Art. 12.03(a)
Burglary of   5 years,                 Arson               10 Years
Habitation    Art. 12.01(4)(B)                             Art. 12.01(2)(F)
Burglary of   5 years,                 Attempted Arson      10 Years
Habitation    Art. 12.01(4)(B)                             Art. 12.01(2)(F)
                                                           Art. 12.03(a)
Burglary of   5 years,                 Trafficking of      10 Years
Habitation    Art. 12.01(4)(B)         Persons             Art. 12.01(2)(G)
Burglary of   5 years,                 Attempted           10 Years
Habitation    Art. 12.01(4)(B)         Trafficking of      Art. 12.01(2)(G)
                                       Persons             Art. 12.03(a)
Burglary of   5 years,                 Compelling          10 Years
Habitation    Art. 12.01(4)(B)         Prostitution        Art. 12.01(2)(H)
Burglary of   5 years,                 Attempted           10 Years
Habitation    Art. 12.01(4)(B)         Compelling          Art. 12.01(2)(H)
                                       Prostitution        Art. 12.03(a)
Burglary of   5 years,                 Misapplication of    7 Years
Habitation    Art. 12.01(4)(B)         Property            Art. 12.01(3)(A)
Burglary of   5 years,                 Attempted           7 Years
Habitation    Art. 12.01(4)(B)         Misapplication of   Art. 12.01(3)(A)
                                       Property            Art. 12.03(a)
Burglary of   5 years,                 Securing            7 Years
Habitation    Art. 12.01(4)(B)         Execution by        Art. 12.01(3)(B)
                                       Deception
Burglary of   5 years,                 Attempted           7 Years
Habitation    Art. 12.01(4)(B)         Securing            Art. 12.01(3)(B)
                                       Execution by        Art. 12.03(a)
                                       Deception
Burglary of   5 years,                 Tax Code           7 Years
Habitation    Art. 12.01(4)(B)         Violation          Art. 12.01(3)(C)
Burglary of   5 years,                 Attempted Tax      7 Years
Habitation    Art. 12.01(4)(B)         Code Violation     Art. 12.01(3)(C)
                                                          Art. 12.03(a)
Burglary of   5 years,                 False Statement to 7 Years
Habitation    Art. 12.01(4)(B)         Obtain Property – Art. 12.01(3)(D)
                                       Credit


	                                32	
Burglary of          5 years,                  Attempt False       7 Years
Habitation           Art. 12.01(4)(B)          Statement to        Art. 12.01(3)(D)
                                               Obtain Property –   Art. 12.03(a)
                                               Credit
Burglary of          5 years,                  Money               7 Years
Habitation           Art. 12.01(4)(B)          Laundering          Art. 12.01(3)(E)
Burglary of          5 years,                  Attempted Money     7 Years
Habitation           Art. 12.01(4)(B)          Laundering          Art. 12.01(3)(E)
                                                                   Art. 12.03(a)
Burglary of          5 years,                  Credit/Debit Card   7 Years
Habitation           Art. 12.01(4)(B)          Abuse               Art. 12.01(3)(F)
Burglary of          5 years,                  Attempted           7 Years
Habitation           Art. 12.01(4)(B)          Credit/Debit Card   Art. 12.01(3)(F)
                                               Abuse               Art. 12.03(a)
Burglary of          5 years,                  Fraudulent Use of   7 Years
Habitation           Art. 12.01(4)(B)          Identifying         Art. 12.01(3)(G)
                                               Information
Burglary of          5 years,                  Attempted           7 Years
Habitation           Art. 12.01(4)(B)          Fraudulent Use of   Art. 12.01(3)(G)
                                               Identifying         Art. 12.03(a)
                                               Information
Aggravated           5 Years                   Injury to Elderly   10 Years
Robbery              Art. 12.01(4)(A)          Disabled Person,    Art. 12.01(2)(D)
                     Art. 12.03(a)             First Degree

      Therefore, there is nothing absurd about aggravated assault with a

misdemeanor assault as a primary crime having a two-year statute of limitations,

particularly because that is exactly what the statutes mandate.

C. THE IN PARI MATERIA DOCTRINE YIELDS A TWO-YEAR STATUTE OF
LIMITATIONS FOR AGGRAVATED ASSAULT WITH A MISDEMEANOR ASSAULT AS
THE PRIMARY CRIME

      Article 12.01 and Article 12.03(d) should be read harmoniously with each

other. See TEX. GOV’T CODE § 311.026(a) (“If a general provision conflicts with a



	                                        33	
special or local provision, the provisions shall be construed, if possible, so that

effect is given to both.”). When two statutes are in pari materia, the doctrine

requires that the statutes be “taken, read, and construed together, each enactment in

reference to the other, as though they were parts of one and the same law.” Jones

v. State, 396 S.W.3d 558, 561 (Tex. Crim. App. 2013). To that end, “[a]ny conflict

between their provisions will be harmonized, if possible, and effect will be given to

all the provisions of each act if they can be made to stand together and have

concurrent efficacy.” Id. at 561–62. Where such statutes irreconcilably conflict,

however, “the more detailed enactment . . . will prevail, regardless of whether it

was passed prior to or subsequently to the general statute, unless it appears that the

legislature intended to make the general act controlling.” Id. at 562.

      The in pari materia doctrine is codified in the Construction Act:

      (a) If a general provision conflicts with a special or local provision,
      the provisions shall be construed, if possible, so that effect is given to
      both.

      (b) If the conflict between the general provision and the special or
      local provision is irreconcilable, the special or local provision prevails
      as an exception to the general provision, unless the general provision
      is the later enactment and the manifest intent is that the general
      provision prevails.

TEX. GOV'T CODE § 311.026(a)–(b). Texas Government Code section 311.026

only applies if there is a conflict between the statutes.




	                                          34	
      Although Appellee contends that there is no conflict between Articles 12.01

and 12.03(d), Appellee addresses this analysis below. See Bennett, 415 S.W.3d at

876 (Keller, P.J., concurring).

      If the Court determines that there is a conflict, section 311.026(a) applies so

that Article 12.01 is read in conjunction with Article 12.03(d), giving effect to both

12.03(d) and 12.01(7): the statute of limitation for aggravated assault with a

misdemeanor assault as a primary crime is two years pursuant to 12.03(d) and

12.02. See TEX. GOV'T CODE § 311.026(a).

      Further, pursuant to subsection (b) of the construction act, the specific

provision in Article 12.03(d) prevails over the general provision in Article

12.01(7).   Thus, if conflict is found and such conflict cannot be resolved by

construing them in such a way as to give effect to both, then the more specific

statute controls over the more general one. TEX. GOV'T CODE § 311.026(b); DIX &

SCHMOLESKY, 40 TEX. PRAC. CRIMINAL PRACTICE AND PROCEDURE § 6:29 (3d ed.

2011). Consequently, Article 12.03(d), being the more specific statute that deals

with aggravated offenses, prevails:       The statute of limitations for aggravated

assault is that of its primary crime. See Id. In our present case, Appelle Schunior

was charged with aggravated assault with a misdemeanor assault as its primary

crime, thus the statute of limitations is two years.




	                                          35	
      In other words, if the Court finds there is a conflict between Article 12.01(7)

and Article 12.03(d), the in pari materia doctrine and the Code Construction Act in

TEX. GOV’T CODE § 311.026(b) are applied and Article 12.03(d) is given

deference. See TEX. CODE CRIM. PROC. art. 12.01, TEX. CODE CRIM. PROC. art.

12.03(d), TEX. GOV’T CODE § 311.026(b), Vasilas, 253 S.W.3d at 271, Bennett,

415 S.W.3d at 884 (Cochran, J., concurring) (citing DIX & SCHMOLESKY, 40 TEX.

PRAC. CRIMINAL PRACTICE AND PROCEDURE § 6:29 (3d ed. 2011)).

      The purpose of the in pari materia doctrine is to

      carry out the full legislative intent, by giving effect to all laws and
      provisions bearing on the same subject. The rule [is based on the
      idea] that several statutes relating to one subject are governed by one
      spirit and policy, and are intended to be consistent and harmonious
      when one statute deals with a subject in comprehensive terms and
      another [statute] deals with a portion of the same subject in a more
      definite way.

Vasilas, 253 S.W.3d at 272. The in pari materia doctrine requires that when “a

general statute and a more detailed enactment are in conflict, the latter will prevail,

regardless of whether it was passed prior or subsequently to the general statute.”

TEX. GOV’T CODE § 311.026(b); Vasilas, 253 S.W.3d at 272; see also 40 TEX.

PRAC. CRIMINAL PRACTICE AND PROCEDURE § 6:29 (3d ed. 2011).

      Article 12.03(d) is the more specific statute given that it deals with the

statute of limitations of only those felonies that are aggravated offenses. Schunior,

467 S.W.3d at 87. In contrast, Article 12.01(7) deals with all the other felonies



	                                         36	
that are not enumerated or that are not provided for in Article 12.03(d). See id.

Therefore, because Article 12.03(d) specifically addresses aggravated offenses and

therefore should be given deference and read as the governing statute applied in the

instant case to determine aggravated assault has a two-year statute of limitations

when its primary crime is a misdemeanor assault. See TEX. CODE CRIM. PROC. art.

12.03(d).

D. A TWO-YEAR STATUTE          OF   LIMITATIONS IS MANDATED BY THE STATUTE
AND IS NOT ABSURD

      The State argues that a two-year statute of limitations for an aggravated

assault is an absurd result, since statutes of limitations are generally based on the

severity of the crime. (State’s Brief at 35). Although this is true in some instances,

it is often not true. For example, robbery is a felony of the second degree, while

aggravated robbery is a felony of the first degree; kidnapping is a felony of the

second degree, while aggravated kidnapping is a felony of the first degree;

nonetheless, these are all violent crimes that have a five-year limitations period,

whether the offense is aggravated or not. TEX. CODE CRIM. PROC. art. 12.01(4)(A)-

(B); TEX. PENAL CODE §§ 29.02, 29.03, 20.03, 20.04. Contrast this to credit card

abuse, a state jail felony, with a seven-year statute of limitations. TEX. CODE CRIM.

PROC. art. 12.01(3)(F); TEX. PENAL CODE § 32.31.          False statement to obtain

property, sometimes a state jail felony, has a seven-year statute of limitations.

TEX. CODE CRIM. PROC. art. 12.01(3)(D), TEX. PENAL CODE § 32.32. Forgery,

	                                        37	
sometimes a state jail felony, has a ten-year statute of limitations. TEX. CODE

CRIM. PROC. art. 12.01(2)(C), TEX. PENAL CODE § 32.21. There are various other

examples that show that the legislature considers numerous factors and

circumstances in deciding what a given statute of limitations will be. The State’s

absurd result argument is baseless when we consider the entirety of Chapter 12,

and the different statutes of limitations assigned to different crimes seemingly

without rhyme or reason.

E. A TWO-YEAR STATUTE OF LIMITATIONS PROTECTS THE PEOPLE AND IS
MANDATED BY THE PRESUMPTION THAT STATUTES OF LIMITATIONS ARE TO BE
CONSTRUED IN FAVOR OF THE DEFENDANT

      A two-year statute of limitation is not an “unjustifiable burden” and is not a

“prosecutor’s dilemma,” as the State argues (State’s Brief at 39). All crimes must

be given some statute of limitations. The State made no record at the trial court as

to why the prosecutors needed more than two years to secure an indictment in this

case nor why the prosecution would need more than two years to indict an

aggravated assault in the typical case. This Court need not speculate. Regardless

of the limitation period, whether, two years or three years, prosecutors will miss

deadlines to indict.




	                                       38	
      IV. TEXAS COURT OF CRIMINAL APPEALS

A. UNSETTLED LAW

      The State argues in their brief that the Court’s prior dictum opinions agree

that the statute of limitations for aggravated assault is three years. (State’s Brief at

20–27). This statement is inaccurate: the Bennett Court cited its three prior cases

(not two cases, as the State represented in their brief). The State conveniently

ignores this Court’s opinion in Matthews, in the this Court considered Article

12.01 and Article 12.03 in stating that aggravated perjury has a two-year statute of

limitations by virtue of its primary crime being a misdemeanor.               Ex parte

Matthews, 933 S.W.2d at 136. As explained below, the three cases cited by the

Bennett Court contradict each other, hence Bennett’s opinion that the law on the

statute of limitations for aggravated assault is unsettled.

      1. State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013)

      In 2013, this Court held in Bennett that the law on the issue of the statute of

limitations on aggravated assault with a misdemeanor assault as the primary crime

is unsettled. Bennett, 415 S.W.3d at 869.          In holding so, the Bennett Court

examined three of its own cases: 1) Hunter v. State, 576 S.W.2d 395 (Tex. Crim.

App. 1979); 2) Ex parte Salas, 724 S.W.2d 67 (Tex. Crim. App. 1987); and 3) Ex

parte Matthews, 933 S.W.2d 134 (Tex. Crim. App. 1996). Id.




	                                          39	
      In Bennett, Presiding Justice Keller concluded in her concurring opinion that

the statute of limitations for aggravated assault is two years when its primary crime

is misdemeanor assault. Bennett, 415 S.W.3d at 870 (Keller, P.J., concurring).

Judge Keller’s opinion presents a thorough analysis of the statutes at issue,

previous dicta by the Court, and legislative history, and states: “The conclusion

demanded by both legislative history and logic is that Article 12.03(d) control, and

the limitation period for the aggravated-assault offense . . . [is] two years.” Id. at

870–878 (Keller, P.J., concurring).

      Articles 12.01 and 12.03 must be construed in accordance with the plain

meaning of their language unless their language is ambiguous or the result is

absurd. Id. at 872. In doing so, we presume the legislature intended the statutory

scheme to be effective in its entirety. Id. (citing Bays, 396 S.W.3d at 584).

      Article 12.03 reads, “[e]xcept as otherwise provided in chapter 12.” TEX.

CODE CRIM. PROC. art. 12.03(d). Article 12.01 begins by stating that “[e]xcept as

provided in Article 12.03 . . . ” TEX. CODE CRIM. PROC. art. 12.01. Articles 12.01

and 12.03 appear to be in conflict with regards to Article 12.01’s three-year “catch-

all” provision. Bennett, 415 S.W.3d at 872 (Keller, P.J., concurring). Nonetheless,

there is no conflict at all. Id. The felony catch-all provision of Article 12.01(7)

“applies to unlisted felonies unless the felony is covered by the provisions of

Article 12.03.”   Bennett, 415 S.W.3d at 872 (Keller, P.J., concurring).          The



	                                        40	
language in the statutes denotes “that the provisions of Article 12.03 trump any

provisions found in Article 12.01.” Id. Thus, Article 12.03 controls aggravated

offenses that are not enumerated in Article 12.01.        Aggravated assault is an

“aggravated” offense not enumerated in Article 12.01, thus Article 12.03(d)

controls and the statute of limitations is two years because the primary offense is

misdemeanor assault in this case. See id.

      Had the legislature intended that aggravated assault not be included in the

application of Article 12.03(d), dealing with aggravated offenses, the legislature

would have specifically exempted it from the statute. Id. at 878. Alternatively, the

legislature could have changed the name of the offense from aggravated assault to

“felony assault,” for example. Id. Further, the legislature could have specifically

enumerated aggravated assault in Article 12.01. Id. But, the legislature has taken

neither of these steps. Id.

      An example of the application of Article 12.03(d)’s provision is robbery and

aggravated robbery.      Robbery, as specified in TEX. CODE CRIM. PROC. art.

12.01(4)(A), has a five-year statute of limitations. Bennett, 415 S.W.3d at 874

(Keller, P.J., concurring). Aggravated robbery is not enumerated in Article 12.01;

thus, aggravated robbery has a five-year statute of limitations by virtue of applying

Article 12.03(d), dealing with aggravated offenses, and applying the statute of

limitations of its primary crime, robbery. Id. Note, that the three-year felony



	                                        41	
catch-all provision of 12.01(7) does not apply to aggravated robbery just because

aggravated robbery is not enumerated in Article 12.01(1)-(6).           Rather, the

aggravated offenses provision of Article 12.03(d) controls.       Id.   In the same

fashion, Article 12.03(d) controls the statute of limitations for aggravated assault.

It mandates that aggravated assault have the same statute of limitations that its

primary crime carries. Therefore, aggravated assault carries a two-year statute of

limitations when its primary crime is a misdemeanor assault.

      Judge Price wrote a separate dissenting opinion. Bennett, 415 S.W.3d at

879–81 (Tex. Crim. App. 2013) (Price, J., dissenting). Judge Price concurred with

Judge Keller’s analysis and conclusion that based on Article 12.03(d), aggravated

assault has a two-year statute of limitations when its primary crime is a

misdemeanor assault. Id. at 879. Judge Price’s dissent is premised on the belief

that trial counsel in Bennett, was ineffective and that pursuant to the Sixth

Amendment, a defendant is guaranteed counsel who is familiar with the law

applicable to defendant’s case. Id. at 879–80. Judge Price highlights the fact that

the statutory language plainly yields a two-year statute of limitations for

aggravated assault with a misdemeanor primary crime. Id. at 879.

      2. Ex parte Matthews, 933 S.W.2d 134 (Tex. Crim. App. 1996) (en banc)

      This Honorable Court addressed, albeit in dicta, the issue of the statute of

limitations of a non-enumerated aggravated offense in Ex parte Matthews. In Ex



	                                        42	
parte Matthews, 9 years after Ex parte Salas and 17 years after Hunter, the Court’s

issue was whether the defendant’s absence from the State tolled the statute of

limitations. Ex parte Matthews, 933 S.W.2d at 134. The Matthews Court stated, in

dicta, that the statute of limitations for aggravated perjury is two years. Id. at 136.

The Court noted that the statutes of limitations are prescribed in Articles 12.01,

12.02, and 12.03. Id. The Court then explained that in the case of aggravated

perjury, the statute of limitations is two years pursuant to Article 12.03(d), because

it carries the same statute of limitations as its primary crime, which is

misdemeanor perjury. Id.

      3. Ex parte Salas, 724 S.W.2d 67 (Tex. Crim. App. 1987) (en banc)

      In 1987, Ex parte Salas was presented before the Court; the Court addressed

the issue of whether there was evidence that the defendant’s first prior felony

conviction was final before the commission of the second felony conviction,

subjecting defendant to the habitual-offender provision.        Ex parte Salas, 724

S.W.2d at 67.     The Court noted in dicta that the statute of limitations for

aggravated assault is three years. Id. at 68. Although the Court cited both Articles

12.01 and 12.03, the Court provided no explanation or reasoning behind its dictum

statement. Id.; Bennett, 415 S.W.3d at 871 (Keller, P.J., concurring).




	                                         43	
       4. Hunter v. State, 576 S.W.2d 395 (Tex. Crim. App. 1979)

       In 1979, the issue before the Court was whether the disjunctive language in

the indictment would render said instrument defective. Hunter, 724 S.W.2d at 395.

The statute of limitations for aggravated assault was not an issue before the Court;

the Court simply noted in passing that the State had three years from the date of the

alleged commission of the offense to prove it. Id. at 399. This statement is dictum

and the Court presented no explanation and no citation to either of the statutes at

issue here, Articles 12.01 and 12.03; the issue was simply not before the Court.

Bennett, 415 S.W.3d at 869.

       5. Ex parte County, 601 S.W.2d 357 (Tex. Crim. App. 1980)

       As mentioned above, this case addressed the application of Article 12.03(d)

as it relates to the non-enumerated offense of aggravated robbery.                        Ex parte

County, 601 S.W.2d 357. In Ex parte County, the court held that the defendant’s

conviction for aggravated robbery be set aside and the indictment dismissed. Id.

The court reasoned that pursuant to the harmonious application of Article

12.01(4)(A)—statute of limitations for robbery, the primary crime—and Article

12.03(d) prescribing the statute of limitations for aggravated offenses not provided

for in chapter 12, the statute of limitations is 5 years.1 Id. Therefore, the Court



																																																								
1
   At the time of Ex parte County, the statute of limitations for robbery was listed under Article
12.01(3)(A); thus Ex parte County cites it as such.

	                                                44	
applied Article 12.03(d) to aggravated robbery, not the felony catch-all provision

of Article 12.01(7).

      Ex parte County is an illustration of how Article 12.01 and Article 12.03(d)

are not in conflict with each other. The statutory language of both articles is given

full effect by reading both articles harmoniously and as complementary of each

other. Consequently, article 12.03(d) is applicable to aggravated assault, a not

enumerated aggravated offense—just like aggravated robbery—and the statute of

limitations of the primary crime for aggravated assault dictates the statute of

limitation for the offense of aggravated assault itself.

      V.   COURTS OF APPEALS’ HOLDINGS YIELD A TWO-YEAR
           STATUTE OF LIMITATIONS WHEN AGGRAVATED
           ASSAULT HAS A MISDEMEANOR ASSAULT AS THE
           PRIMARY CRIME

A. FIRST DISTRICT COURT OF APPEALS OF TEXAS, HOUSTON

      1. Ex parte Tamez, 4 S.W.3d 854 (Tex. App.—Houston [1st Dist.] 1999),
      aff’d, 38 S.W.3d 159 (Tex. Crim. App. 2001)

      In Ex parte Tamez, the court held that the statute of limitations for

aggravated assault is two years because its primary crime is misdemeanor perjury.

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).




	                                          45	
      2. State v. Coleman, 962 S.W.2d 267 (Tex. App.—Houston [1st Dist.]
      1998, pet. ref’d)

      In Coleman, the Court held that the statute of limitations for aggravated

perjury is two years pursuant to Article 12.03(d) because its primary crime is

misdemeanor perjury. Coleman, 962 S.W.2d at 268. The Court clearly stated that,

“although the statute of limitations for the felony offense of aggravated perjury is

inconsistent with that of most other felonies, nonetheless, article 12.03(d)

unambiguously means what it says. We do not believe, as the State argues, that the

result is absurd.” Id.

B. FOURTH COURT OF APPEALS OF TEXAS, SAN ANTONIO

      1. State v. Schunior, 467 S.W.3d 79 (Tex. App.—San Antonio 2015, pet.
      granted)

      This is the case on appeal before this Court. Schunior was charged with

aggravated assault with the primary crime of misdemeanor assault more than two

years after the alleged commission of the offense. Schunior, 467 S.W.3d at 80.

The court held that pursuant to the harmonious reading of Articles 12.01 and

12.03(d), the statute of limitations for aggravated assault is controlled by Article

12.03(d) and is therefore the same limitations period for its primary crime; in this

case, the limitations period for aggravated assault is two years because the primary

crime is misdemeanor assault.




	                                       46	
      2. Ex parte Zain, 940 S.W.2d 253 (Tex. App.—San Antonio 1997, no
      pet.)

      The Fourth Court of Appeals addressed the issue of aggravated offenses in

Ex parte Zain, 940 S.W.2d 253 (Tex. App.—San Antonio 1997, no pet.). In Ex

parte Zain, the Court found that an aggravated offense carries the same statute of

limitations as the primary crime; thus, the Court held, as a matter of law, that

aggravated perjury has a two-year statute of limitations, the same as perjury. Id. at

253. In reaching its conclusion, the Court discussed Article 12.03(d) of the Code

of Criminal Procedure, relating to aggravated offenses: “ . . . any offense that bears

the title ‘aggravated’ shall carry the same limitation period as the primary crime.”

Id. at 254.

C. SEVENTH COURT OF APPEALS OF TEXAS, AMARILLO

      1. Moore v. State, No. 07-10-00369-CR, 2012 WL 3100904 (Tex. App.—
      Amarillo Jul. 21, 2012, no pet.) (mem. op., not designated for
      publication)

      Appellant Moore was charged with aggravated assault with misdemeanor

assault as the primary crime.      Moore, 2012 WL 3100904 at *1.           The court

addressed the statute of limitations for aggravated assault, albeit in dicta, stating

that the “limitations period for . . . aggravated assault is two years.” Moore, 2012

WL 3100904 at *1 (citing Article 12.03(d)).




	                                        47	
D. TWELFTH COURT OF APPEALS OF TEXAS, TYLER

      1. Fantich v. State, 420 S.W.3d 287 (Tex. App.—Tyler 2013, no pet.)

      In Fantich, the court addressed the statute of limitations for aggravated

assault and held that the statute of limitations for aggravated assault is two years

when its primary crime is a misdemeanor assault. Id. at 291.

      2. Compton v. State, 202 S.W.3d 416 (Tex. App.—Tyler 2006, no pet.)

      The Tyler Court of Appeals dealt with the same issue in the context of

whether a defendant received ineffective assistance of counsel, when counsel did

not file a motion to set aside the indictment alleging the indictment was filed

outside the two-year statute of limitations for aggravated perjury.

      The Tyler Court of Appeals found the statute of limitations for aggravated

perjury is two years and the failure of counsel to move to quash the indictment was

“sufficiently egregious and harmful” to warrant a finding of ineffective assistance

of counsel. Id. at 421−22.

                               VI. CONCLUSION

      Summarizing, in determining the statute of limitations for aggravated

offenses, Article 12.03(d) is applied to aggravated offenses not specifically

enumerated in Article 12.01, or anywhere in chapter 12. Thus, aggravated assault

carries a two-year statute of limitations when its primary crime is misdemeanor

assault.


	                                        48	
      The harmonious reading of the plain language of Chapter 12 makes it clear

that Article 12.01 gives deference to Article 12.03 as to aggravated offenses not

enumerated in Article 12.01. The felony catch-all provision of Article 12.01(7)

applies to those felonies not enumerated in 12.01 and not provided for in Article

12.03; in turn, Article 12.03(d) applies to aggravated offenses that are not provided

for in Chapter 12, specifically, in Article 12.01.

      The analysis of the statutory language begins with the premise that a statute

of limitations is to be construed liberally in favor of the defendant. The purpose of

the statute of limitations is to safeguard the defendant from prosecution, to limit

prosecution to a specific fixed period of time, and to minimize the danger of

punishment. Further, statutory construction is based on the presumption that the

legislature meant what it said. It is beyond the province of any court to alter the

application of a statute to what a court believes is the preferred result.

      The State has not cited in their brief a single case from any court of appeals

that has held that the statute of limitations for any aggravated offense not

specifically enumerated in Article 12.01, including aggravated assault, is

determined by the felony catch-all provision of Article 12.01(7) instead of Article

12.03(d)’s provision, which specifically provides for the statute of limitations for

aggravated offenses.




	                                          49	
      The plain language analysis resolves the apparent conflict between Article

12.01 and Article 12.03: The inevitable conclusion is that the statutory language is

not ambiguous and it can be harmoniously applied giving effect to every single

word in both statutes.

      Nonetheless, were the Court to disagree with the plain language analysis, the

law provides, as briefed above, that all and every alternative methods of statutory

constructions yield the same result:      Article 12.03(d) controls the statute of

limitations for aggravated assault.     Whether the Court implements the plain

language analysis, the in pari materia doctrine (Government Code), the

Colyandro’s legislative ratification theory, legislative intent, or any other canon of

construction, the result is inevitably the same: Article 12.03(d) controls the statute

of limitations for aggravated assault, yielding a two-year statute of limitations for

aggravated assault with a misdemeanor assault as its primary crime.

      Further, a plain reading of Article 12.03 makes it clear that the phrase “the

primary crime” is not interchangeable with neither (1) the “lesser-included

offense” with the longest statute of limitations, nor (2) the “most serious offense.”

The primary crime of a charged aggravated assault is the charged assault in the

indictment and as defined in sections 22.01 and 22.02 of the Penal Code.




	                                        50	
      Invariably, the statute of limitations for aggravated assault in this case is two

years because its primary crime is a misdemeanor assault; the indictment is

defective in substance, and requires dismissal with prejudice.

                                  VII. PRAYER

      WHEREFORE,          PREMISES         CONSIDERED,           Appellee    Schunior

respectfully prays this Honorable Court to affirm the decision of the Fourth Court

of Appeals.


                                       Respectfully submitted,

                                       BALLI LAW OFFICE
                                       P.O. Box 1058
                                       Laredo, Texas 78042-1058
                                       Tel: (956) 712-4999
                                       Fax: (956) 724-5830

                                   By: /s/ Claudia V. Balli
                                      CLAUDIA V. BALLI
                                      SBN: 24073773

                                   By: /s/ Roberto Balli
                                      ROBERTO BALLI
                                      SBN: 00795235

                                       Attorneys for Victor Manuel Schunior, Jr.




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                       CERTIFICATE OF COMPLIANCE

      By affixing my signature below, I hereby certify that the foregoing brief

complies with Rule 9.4, Texas Rules of Appellate Procedure, as amended, and that

the word count, less exempt sections, is 11,4777.


                                      /s/ Claudia V. Balli
                                      CLAUDIA V. BALLI


                         CERTIFICATE OF SERVICE

      By affixing my signature below, I hereby certify that on December 10, 2015,

the following have been completed:

      1) A true and correct copy of the foregoing document was electronically

         filed with the Clerk of the Court of the Texas Court of Criminal Appeals,

         in accordance with Tex. R. App. P. 68.3 as adopted by the Court of

         Criminal Appeals and hard copies will be accordingly;

      2) A true and correct copy of the foregoing document was served on David

         Reuthinger,    Jr.,   Attorney         for   the   State,   via   email   at

         dreuthinger@webbcountytx.gov.


                                      /s/ Claudia V. Balli
                                      CLAUDIA V. BALLI




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