Ex Parte Gregory Montgomery
14-17-00025-CR
| Tex. App. | Aug 1, 2017Background
- Victim (P.J.) was sexually assaulted on October 31, 1989, at age 11; biological material was collected during a sexual-assault exam and stored.
- The material was sent to a crime lab in December 2008; DNA testing was requested in June 2012, completed in September 2013, and uploaded to CODIS in November 2013.
- A CODIS match to Gregory Montgomery occurred in December 2013; Montgomery was indicted in June 2015 for aggravated sexual assault of a child.
- Montgomery filed a pretrial habeas application arguing the prosecution was time-barred because, under the statute in effect when the offense occurred, limitations expired on the victim’s 28th birthday (Dec. 30, 2005).
- The State invoked article 12.01(1)(C) (effective 2001), which removes the limitations period for sexual assault when biological matter collected during the investigation is subjected to forensic DNA testing producing non-victim/non-identifiable matches; the trial court denied habeas and Montgomery appealed.
Issues
| Issue | Montgomery's Argument | State's Argument | Held |
|---|---|---|---|
| Whether art. 12.01(1)(C) applies to aggravated sexual assault | 12.01(1)(C) applies only to "sexual assault," not "aggravated sexual assault" | Aggravated offenses share the same limitation rules as primary crimes; art. 12.01(1)(C) therefore applies | Rejected; 12.03(d) treats aggravated offenses the same, so 12.01(1)(C) applies |
| Whether testing must be completed before the original limitations expiry for 12.01(1)(C) to apply | Testing occurred long after limitations expired (Dec. 30, 2005), so exception does not apply | Statute contains no deadline for when testing must be completed; collection during investigation suffices | Rejected; court will not insert a timing requirement into the statute; exception applies |
Key Cases Cited
- Ex parte Tamez, 38 S.W.3d 159 (Tex. Crim. App. 2001) (statute-of-limitations claims may be raised by pretrial writ of habeas corpus)
- Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010) (pretrial habeas is an extraordinary remedy)
- Ex parte Dickerson, 549 S.W.2d 202 (Tex. Crim. App. 1977) (if pleading shows offense is barred, indictment is fundamentally defective)
- Ex parte Lovings, 480 S.W.3d 106 (Tex. App.—Houston [14th Dist.] 2015) (refusing to read an ‘‘open/active investigation’’ timing requirement into art. 12.01(1)(C))
- Ex parte Vela, 460 S.W.3d 610 (Tex. Crim. App. 2015) (courts should not add or subtract language from an unambiguous statute)