
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-01-00388-CR



The State of Texas, Appellant

v.


Kirk Franceschini, Appellee






FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY

NO. 562813, HONORABLE DAVID F. CRAIN, JUDGE PRESIDING






	The State appeals an order granting appellee Kirk Franceschini's motion to quash the
information in a criminal proceeding charging him with reckless operation of a boat and excessive
speed under the Water Safety Act.  See Tex. Parks & Wild. Code Ann. §§ 31.094-.096 (West 1991). 
We affirm the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND
	On July 19, 1997, appellee was involved in a boating accident on Lake Travis.  On
October 2, 1997, the State filed an information, alleging appellee engaged in deadly conduct.  See
Tex. Pen. Code Ann. § 22.05 (West 1994).  Appellee filed a motion to quash, arguing among other
grounds that the State had improperly charged him under the deadly conduct statute and that he was
required to be charged under the more specific Water Safety Act.  See Tex. Parks & Wild. Code Ann.
§§ 31.094-.096 (West 1991).  The State amended and refiled the information based on subsequent
motions to quash filed by appellee.  At a hearing in April 2000 to amend the refiled information,
appellee agreed to waive the statute of limitations with regard to the deadly conduct charge.  The
next day, the trial court granted appellee's motion to quash on the ground that the State was required
to charge appellee under the Water Safety Act.  The State filed a notice of appeal, but subsequently
filed a motion to dismiss the appeal.
	On July 14, 2000, the State filed another information, alleging reckless operation and 
excessive speed violations under the Water Safety Act.  Appellee filed a motion to quash, arguing
among other grounds that the two-year statute of limitations had expired before the charges under
the Water Safety Act were filed.  On June 18, 2001, the trial court granted appellee's motion.  The
State appeals to this Court.

DISCUSSION
	The State raises four points of error on appeal: (1) the trial court erred in granting
appellee's motion to quash based on the limitations defense; (2) the trial court erred in granting
appellee's motion to quash based on the limitations defense because that defense was not properly
raised; (3) appellee is equitably barred from claiming that section 22.05 of the Texas Penal Code and
sections 31.094-.096 of the Texas Parks and Wildlife Code are in pari materia, thus requiring
appellee to be charged under the more specific provisions of the Texas Parks and Wildlife Code, and
at the same time claiming that the statutes are different offenses for purposes of statutes of
limitations; and (4) the trial court erred in finding that section 22.05 of the Texas Penal Code and
sections 31.094-.096 of the Texas Parks and Wildlife Code are in pari materia.  To put the State's
arguments in context, we will consider the points out of order.
 The State contends by its fourth point of error that the trial court erred in finding that
section 22.05 of the Texas Penal Code and sections 31.094-.096 of the Texas Parks and Wildlife
Code are in pari materia, thus requiring appellee to be charged under the more specific provisions
of the Texas Parks and Wildlife Code.  This, however, was the ruling of the trial court in the case
charging appellee with deadly conduct under the Texas Penal Code.  Although the State appealed
that ruling, it subsequently dismissed the appeal.  Accordingly, that issue is not before this Court to
consider.  The State's fourth point of error is overruled.
	The State contends by its second point of error, that the trial court erred in granting
appellee's motion to quash based on the statute of limitations defense because that defense was not
properly raised.  Relying on Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998), the State
claims that appellee "failed to properly raise the defense of limitations issue by failing to file, prior
to trial, a motion to dismiss under Article 27.08(2) of the Texas Code of Criminal Procedure."  The
State contends that appellee's motion to quash was insufficient because it cited the statute of
limitations for felonies rather than misdemeanors.  The State further argues appellee failed to assert
in the motion that it appears from the face of the information that prosecution for the offense is
barred by a lapse of time.  We do not find these arguments persuasive.  First, a motion to quash is
sufficient to raise the issue of an alleged defect.  See McCoy v. State, 932 S.W.2d 720, 724 (Tex.
App--Fort Worth 1996, pet. ref'd).  Second, the fact that appellee cited article 12.01 (statute of
limitations for felonies) rather than article 12.02 (statute of limitations for misdemeanors) is not
dispositive.  See Tex. Crim. Proc. Code Ann. arts. 12.01, .02 (West 1977 & Supp. 2002).  The
motion states in relevant part:
That the charging of this new offense in this INFORMATION is BARRED by the
Statute of Limitations.  Article 12.01 of the Texas Code of Criminal Procedure
requires that an information for any misdemeanor must be presented within two
years from the date of the commission of the offense and not afterward.  The
information in this cause was filed on July 14, 2000 and alleges an offense date of
July 19, 1997.


Our reading of the above language supports appellee's contention that he has adequately asserted in
his motion that it appears from the face of the information that prosecution for the offense is barred
by limitations.  Accordingly, the State's second point or error is overruled.
	By its first and third points of error, the State contends that appellee should be
equitably estopped from raising the defense of limitations.  In its first point of error, the State
contends that appellee's waiver of the statute of limitations in the case charging him with deadly
conduct under the Texas Penal Code also operates as a waiver of the statute of limitations in this case
charging him with violations of the Water Safety Act because the same conduct is at issue in both
charges.  We disagree.  Our reading of the record indicates that appellee entered into an agreement
in which the State agreed to strike that portion of the information that recited multiple filings of the
same charge--deadly conduct--in exchange for appellee's agreement to waive the statute of
limitations with regard to that charge.  At the April 2000 hearing to amend the information alleging
deadly conduct, the State requested leave of court to file an amended information which was to
include the following paragraph:

	And I do further present in and to said court that heretofore, on the 2nd day
of October, 1997, the complaint and information based on said complaint were duly
filed in this court charging said Kirk Franceschini with the said offense charged in
this information, and while said complaint and information were pending and
thereafter on the 17th day of June, 1998, a complaint and information based on said
complaint were duly filed in this court charging said Kirk Franceschini with the said
offense charged in this information, and while said complaint and information were
pending and thereafter on the 14th day of April, 2000, a complaint and information
based on said complaint were duly filed in this court charging said Kirk Franceschini
with the said offense charged in this information, against the peace and dignity of the
State.


The following colloquy then occurred:


APPELLEE'S COUNSEL:	. . .  The thing I did not write in my Motion to Quash,
Judge, is the second paragraph of the information is
totally unnecessary.  And I'm concerned that that
pleading - so many complaints and informations will
prejudice the jury to think that Mr. Franceschini has
been charged several times with this type of crime.

				     I would ask that the second paragraph of the
information be struck, or not read to the jury.  I just
think it's - it attempts to deal with the statute of
limitations issue, but I think the record handles that. 
I don't think you need to put it in the information why
the statute of limitations is tolled.  So that's the one
thing I did not put in my Motion to Quash.  But I
object to that second paragraph relating to prior
complaints.

	. . . .

STATE'S ATTORNEY:	Judge, if defense counsel's willing to waive any
argument as to limitations having run, then State is
willing to waive the reading of that second paragraph
to the jury.

APPELLEE'S COUNSEL:	I agree to that.

THE COURT:   		Just waive the reading of it?

STATE'S ATTORNEY:	If defense counsel stipulates the limitations has not
run.

THE COURT:		That's fine with me.

APPELLEE'S COUNSEL:	That's fine.

	. . . .

STATE'S ATTORNEY:	Judge, is the Court accepting the stipulation from the
defense counsel that it is - that the statute of
limitations has not run?

THE COURT:		Was that the stipulation?

APPELLEE'S COUNSEL:	Yes.

THE COURT:		I'll accept that.


This exchange does not translate into an agreement to waive the statute of limitations with regard
to charges of reckless operation and excessive speed which were later filed.  Appellee did not agree
to waive the statute of limitations for any offense that the State could conceivably charge him with
stemming from the conduct alleged; rather, appellee agreed to waive the statute of limitations with
regard to the offense charged in that case, deadly conduct.  The State's first point of error is
overruled.
	By its third point of error, the State contends that if appellee prevails in his in pari
materia argument, he should be equitably estopped from claiming that the statutes are not the same
for purposes of applying the statute of limitations to the offense alleged in this case.  Under this 
argument, the State claims that the statute of limitations, with regard to the violations of the Water
Safety Act, was tolled during the pendency of the information filed alleging deadly conduct.  See
Tex. Code Crim Proc. Ann. art. 12.05(b) (West 1977).  In other words, because the deadly conduct
offense constituted the "same" offense as the violations under the Water Safety Act, the statute of
limitations for the violations of the Water Safety Act should be tolled during the pendency of the
filing of the deadly conduct information.  The State relies on State v. Yount, 853 S.W.2d 6 (Tex.
Crim. App. 1993), in support of its equitable estoppel argument.  The Yount case, however, is
distinguishable.  In that case, Yount was charged with involuntary manslaughter and requested an
instruction on the lesser-included offense of DWI at the charging conference.  Id. at 7.  The request
was granted, and the jury convicted Yount of the lesser-included offense.  Id.  He then filed a motion
to set aside the judgment, claiming that the DWI conviction was barred by the statute of limitations. 
Id.  The appellate court affirmed the judgment of the trial court.  Id.  The State appealed, and the
court of criminal appeals affirmed Yount's conviction, concluding that Yount

cannot benefit from the lesser-included offense instruction and then attack his
conviction of that lesser-included offense on limitations grounds.  Since Appellee
requested that the jury be instructed on the lesser-included offense, he is now
estopped from complaining that his conviction of that offense is barred by
limitations.


Id. at 8.  The present case does not involve a lesser-included offense; rather, it involves a more
specific offense under which the trial court held the appellee should have been charged.  In addition,
in Yount, the defendant requested a lesser-included offense instruction for an offense for which the
statute of limitations had expired at the time he made the request.  In contrast, the appellee in the
present case argued from the outset, beginning with the first motion to quash filed February 13, 1998,
that the Texas Penal Code provision and the Water Safety Act provisions were in pari materia. 
Unlike the defendant in Yount, here appellee did not wait for the statute of limitations to expire
before requesting the State to take the appropriate action; rather, appellee notified the State as soon
as possible.  
	The State has considerable discretion in determining under which statute a defendant
is charged.  See State v. Shelton, 802 S.W.2d 80, 81 (Tex. App.--Austin 1990), rev'd on other
grounds, 830 S.W.2d 605 (Tex. Crim. App. 1992); Meshell v. State, 739 S.W.2d 246, 252 (Tex.
Crim. App. 1987).  Appellee asserted that the Texas Penal Code provision and the Water Safety Act
provisions were in pari materia by filing motions to quash when he was charged under section 22.05
of the Texas Penal Code. (1)  The State had discretion to charge appellee under any appropriate statute. 
If the State, as it contends in its brief to this Court, believed that the statutes were not in pari
materia, there is no reason the State could not charge appellee under the Water Safety Act also.  If
the State had charged appellee under the Water Safety Act and obtained a conviction under both the
deadly conduct provision and the Water Safety Act provisions, the State's position would be
considerably different.  Where the State has prosecuted under both a general and a specific provision
and has obtained a conviction under both, the appropriate remedy is to affirm the conviction that the
State should have prosecuted and vacate the other.  Burke v. State, 28 S.W.3d 545, 547 n.3 (Tex.
Crim. App. 2000).
	Under the facts of this case, appellee asserted that he should be charged under the
Water Safety Act and the State had the discretion to file charges under that Act within the two-year
limitations period.  Appellee put the State on notice regarding his in pari materia claim from the
outset.  The State received an unfavorable ruling on the in pari materia issue from the trial court in
the case charging deadly conduct and failed to pursue an appeal of that ruling.  We hold that appellee
is not equitably estopped from asserting the affirmative defense of limitations.  The State's third
point of error is overruled.
	Accordingly, we hold that the trial court did not err in granting appellee's motion to
quash the information on the ground that the charges were barred by the statute of limitations.  The
order of the trial court is affirmed.


					__________________________________________
					Justice Jan P. Patterson
Before Justices Kidd, Patterson and Puryear
Affirmed
Filed:   March 21, 2002
Do Not Publish
1.        Appellee filed motions to quash asserting this argument on February 13, 1998; September 3,
1998; November 18, 1998; April 19, 2000; April 27, 2000; and May 10, 2000.

