Fantich v. State

• Decision Date: 20 December 2013
• Docket Number: No. 12–13–00011–CR.,12–13–00011–CR.
• Citation: Fantich v. State, 420 S.W.3d 287 (Tex. App. 2013)
• Parties: Marc FANTICH, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

420 S.W.3d 287

Marc FANTICH, Appellant

v.The STATE of Texas, Appellee.

No. 12–13–00011–CR.

Court of Appeals of Texas, Tyler.

Dec. 20, 2013.

Michael W. McCrum, San Antonio, for Appellant.

Chris B. Martin, for The State of Texas.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

OPINION

SAM GRIFFITH, Justice.

Marc Fantich appeals from the trial court's denial of his pretrial application for writ of habeas corpus. In two issues, he contends that his indictment for conspiracy to commit aggravated assault is barred by the statute of limitation. We reverse and dismiss the indictment.

Background

On June 14, 2012, a Van Zandt County grand jury indicted Appellant for the offense of criminal conspiracy to commit aggravated assault. The indictment alleged that the offense was committed on or about October 1, 2009—more than two years before the indictment was filed.

Appellant filed a motion to set aside the indictment, contending that the limitation period for the offense had run. The trial court denied Appellant's motion and ruled that the limitation period for criminal conspiracy to commit aggravated assault is three years.

Appellant filed an application for a pretrial writ of habeas corpus based on the running of the limitation period, which the trial court also denied. ¹ This appeal followed.

Limitation Period for Aggravated Assault

Both parties agreed at oral argument that this is a case of statutory construction. The dispute is whether the limitation period for the offense of aggravated assault is two or three years. SeeTex.Code Crim. Proc. Ann. art. 12.03(b) (West 2005) (limitation for conspiracy is same as object of conspiracy).

Appellant raises two issues: (1) whether application of articles 12.03(b) and (d) of the Texas Code of Criminal Procedure to the offense of conspiracy to commit aggravated assault warrants application of the two-year period of limitation for the “primary” crime of assault, and (2) whether, in determining the statute of limitation for the offense of conspiracy to commit aggravated assault, the rules of statutory construction warrant application of articles 12.03(b), 12.03(d), and 12.02(a). The State contends that the court of criminal appeals, this court, and other courts have stated that the limitation period for aggravated assault is three years.

Applicable Law for Interpreting Statutes

Statutory construction is a question of law subject to de novo review. See Krause v. State, 405 S.W.3d 82, 85 (Tex.Crim.App.2013). When interpreting the meaning of a statute, the courts seek to effectuate the collective intent of the legislators who enacted the legislation. 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)). To determine collective intent, we look first to the literal text, which provides the best means to determine the fair, objective meaning of that text at the time of its enactment. Clinton, 354 S.W.3d at 800.

Unless the statutory language is ambiguous or application of the statute's plain meaning would cause an absurd result, we do not consider extratextual factors. See id. We determine a statute's plain meaning by applying the canons of construction, which include a list of presumptions regarding legislative intent. Id. (citations omitted); see alsoTex. Gov't Code Ann. § 311.021 (West 2013). It is presumed that (1) compliance with the constitutions of this state and the United States is intended; (2) the entire statute is intended to be effective; (3) a just and reasonable result is intended; (4) a result feasible of execution is intended; and (5) public interest is favored over any private interest. Id. § 311.021; Clinton, 354 S.W.3d at 800.

The Statutes

Article 12.01 of the code of criminal procedure is the primary statute for determining the limitation period for felony indictments. SeeTex.Code Crim. Proc. Ann. art. 12.01 (West Supp.2013). Article 12.01 begins by stating, “Except as provided in Article 12.03,” and categorizes the limitation period for felony offenses, which ranges from “no limitation” to three years. See id. Subsections (1) through (6) set the limitation period for specific felony offenses. See id. art. 12.01(1)-(6). Subsection (7) provides that the limitation period for “all other felonies” is “three years from the date of the commission of the offense.” See id. art. 12.01(7). Aggravated assault is not enumerated in subsections (1) through (6), but this does not automatically trigger application of subsection (7) because of the statute's prior reference to article 12.03 of the code of criminal procedure. See id.

Article 12.03 provides the framework for determining the limitation period for attempt, conspiracy, solicitation, organized criminal activity, and aggravated offenses not enumerated in article 12.01. SeeTex.Code Crim. Proc. Ann. art. 12.03. The limitation period for criminal conspiracy is the same as that of the most serious offense that is the object of the conspiracy. Id. art. 12.03(b). In this case, the object of the conspiracy is aggravated assault.²

Article 12.03(d) provides that “[e]xcept as otherwise provided by this chapter, any offense that bears the title ‘aggravated’ shall carry the same limitation period as the primary crime.” Id. art. 12.03(d). Because aggravated assault is not enumerated in article 12.01, we apply the language in article 12.03(d) to determine the limitation period for the offense alleged in this case. See id. arts. 12.01, 12.03(d).

For aggravated assault, the primary crime is assault, which is defined in section 22.01 of the penal code. SeeTex. Penal Code Ann. § 22.02(a) (West 2011), § 22.01 (West Supp.2013). Section 22.01 groups assaults by the nature of the conduct and victim involved, resulting in two classifications—misdemeanor assaults and felony assaults. See generally id. § 22.01(b), (b–1), (c). If an assault under section 22.01 is classified as a misdemeanor, the limitation period is two years. SeeTex.Crim. Proc. Ann.art. 12.02(a) (West Supp.2013). But if an assault is classified as a felony under section 22.01, the limitation period is three years. See id. arts. 12.01(7), 12.03(d).

Articles 12.01 and 12.03 of the code of criminal procedure are not ambiguous. Therefore, we apply their plain meaning to determine the limitation period for the offense of criminal conspiracy to commit aggravated assault as alleged in this case. See Clinton, 354 S.W.3d at 800.

Applying Plain Meaning

We begin our analysis by first reviewing the allegations in the indictment, which provides, in relevant part, as follows:

[O]n or about October 1, 2009, and before the presentment of this indictment ... [Appellant] did then and there with intent that aggravated assault, a felony, be committed against Malcom Chakery, agree with Chris Sivestro Fantich that they or one of them would engage in conduct that would constitute said offense, to-wit: causing bodily injury to Malcom Chakery requiring hospitalization by striking with a ball bat or cutting him with a razor or striking him with a pool stick, and the Defendant or Chris Sivestro Fantich performed an overt act in pursuance of said agreement, to-wit: offering to pay Chance Lee Jenkins or a Confidential Human Source to travel to Grand Prairie, Texas, the city in which Malcom Chakery lived, to commit said assault and by such offer caused Chance Lee Jenkins and a Confidential Human Source to travel to Grand Prairie, Texas, the city in which Malcom Chakery lived, while in possession of a pool stick....

(emphasis added). The language of the indictment shows that the object of the criminal conspiracy is aggravated assault. SeeTex.Code Crim. Proc. Ann. art. 12.03(b). The italicized portion of the indictment alleges aggravated assault because it alleges bodily injury requiring hospitalization and the use of a deadly weapon. SeeTex. Penal Code Ann. § 22.02(a). But either misdemeanor or felony assault can be the “primary crime” for aggravated assault. SeeTex.Code Crim. Proc. Ann. art. 12.03(d); Tex. Penal Code Ann. §§ 22.01(a), (b), (b–1), (c), 22.02(a).

The allegations in the indictment are consistent with the definition of aggravated assault as set forth in section 22.02(a) and assault as set forth in section 22.01(a)(1) of the penal code. Section 22.01(a)(1) states that a person commits an offense if he “intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse....” SeeTex. Penal Code Ann. § 22.01(a)(1). The indictment does not allege any other facts that would render the primary crime in this case a felony assault under section 22.01. See generally id. § 22.01(b), (b1).³ Thus, the primary crime of the aggravated assault in this case is Class A misdemeanor assault. See id. § 22.01(a)(1), (b); see alsoTex.Code Crim. Proc. Ann. art. 12.03(d).

Because the primary crime of the aggravated assault in this case is a misdemeanor, the limitation period for the aggravated assault alleged in the indictment is two years. See id.arts. 12.02(a); 12.03(d). As a result, the limitation period for the offense of criminal conspiracy to commit aggravated assault as alleged in this case is also two years. See id. art. 12.03(b).

Not an Absurd Result

A court may consider extratextual factors if application of a statute's plain meaning would cause an absurd result. See Clinton, 354 S.W.3d at 800. But our application and interpretation of article 12.03 does not cause an absurd result. Other appellate courts have applied article 12.03 in relation to article 12.01 and also determined that the limitation period is two years because the primary crime of the aggravated offense was a misdemeanor. See Ex parte Matthews, 933 S.W.2d 134, 136 (Tex.Crim.App.1996), overruled on other grounds by Proctor v. State, 967 S.W.2d 840 (Tex.Crim.App.1998); Compton v. State, 202 S.W.3d 416, 420 (Tex.App.-Tyler 2006, no pet.); Ex parte Tamez, 4 S.W.3d 854, 856 (Tex.App.-Houston [1st Dist.] 1999), aff'd,...