*1 The evidence shows Morris dis robbing MATTHEWS, Appellant.
cussed store with Collins and parte Ex Jean place. Ellerbrock the crime took Col before No. 01-92-00447-CR. parking lins testified Morris checked immediately lot for customers before Morris Festejos. himself stabbed Morris admits Dist.). (1st Houston they going that he to knew were rob the store. testified took Collins that Morris $240 Jan. 1995. legally
from the There is and factual store. Morris,
ly to sufficient evidence show as actor, intentionally primary robbery.
murder in the course of
Morris next contends the trial failing
court erred law of
parties application paragraph
charge, though generally applied the court parties charge.
the law He represents
that this error or alone reversible parties improp the law of was because
erly applied, guilty Morris cannot be found party
as a to the offense. State,
Morris points Johnson v. was proper
the court held reversal explicit more requested
application
parties
of the law of
to the facts.
(Tex.Crim.
State,
Johnson v. however, ease,
App.1987). In that the court best
determined because evidence
supported theory upon the based law of emphasis by
parties and the the State was on parties,
the law harm in not there was explicitly parties applying
more the law of case, present
the facts of the case.
however, though presented two Morris,
separate on convict theories which to heavily theory that
the State relied on the Thus, primary actor. if
Morris was even incorrectly applied, it parties
the law error
would be harmless convic supported on the State’s main
tion could be
theory primary actor be that Morris was clearly supported such a
cause the evidence
theory.
(Tex.Crim.App.1985), overruled other (Tex.Crim.App.
grounds, 716
1986). points of error are overruled. These judgment of the trial court is affirmed. *2 appellant alleges
ment the perjury on June she testified capital for the murder trial of Phillip Tompkins. parties agree The aggravated per- for jury years from the is three commission of the offense. Arizona, appellant,
The lives in flew testify from Arizona to Texas for the State trial, Tompkins in the trial. appellant psy- testified she held a Ph.D. in chology University from Florida State Tal- alleges lahassee. The in this indictment ease appellant psy- does not hold Ph.D. in chology University. from Florida State The appellant only record shows the has a mas- degree interdepartmental ter’s pro- from the gram in the from humanities Florida State. Jr., Haynes, Rogers, alleged Richard Donald The perju- W. State did not discover the Houston, ry appellant. February for until March or post-conviction corpus pro- writ of habeas Jr., Holmes, appellee.
John B. for ceeding Tompkins case. OLIVER-PARROTT, C.J., Before case, appellant this filed writ of WILSON, O’CONNOR and JJ. challenging corpus, the indictment because the statute of limitations had run. OPINION ON REHEARING ON RE- appellant contends statute of limita- MAND FROM THE TEXAS COURT alleged tions ran in the 10 between the OF CRIMINAL APPEALS indictment; perjury and the con- State tends the statute of limitations was tolled O’CONNOR, Justice. appellant while the was outside Texas. grant motion for re hearing, previous opinion withdraw our Waiver issue this in its stead. This case is on re In point original one in error her mand from Appeals. the Court Criminal brief, appellant equita claims the State is Matthews, Ex Parte Jean S.W.2d bly estopped prosecuting her. Under (Tex.App. 1993), rev’d, [1st Dist.] — Houston point, this appellant that the State (Tex.Crim.App.1994). S.W.2d 40 In our rely should not “in an a statute offensive original opinion, we dismissed for want of has, actions, manner it its own jurisdiction, Matthews, finding ap Jean brought appellant play.” into pellant, could not an indictment in explain statement, what she means pre-trial corpus writ proceeding. of habeas brought play how the statute into Court of Criminal held she by using it in an “offensive” manner. We could, reversed, and remanded. We now point ap overrule this of error because the address appeal. the merits of the We hold pellant adequately argue did not or brief it. the statute of limitations is not tolled Tex.R.App.P. 74(f); Eubanks v. see when a the state leaves unless that (Tex.App. [1st person has — Houston been accused crime. We pet.). Dist.] grant the writ of habeas Statutory Summary Construction Fact January point rehearing, was indicted on one on of error aggravated perjury. mandatory for The indict- contends principles construction contained in which case the statute only in Tex.Code Crim.Proc. art. 3.01 and limitations is after indictment. tolled Tex. 311.011(b), tolling provision interpretation, time Under the second Code Gov’t 12.05(a) in TexCode art. does begins to toll becomes Crim.P. *3 apply to she accused, her because when she left Texas person Tex- an not when the leaves charged had been a crime. scenarios, In both as. apply person until the has been 12.05(a) (Ver- The in article státute formally crime. accused of a 1977)
non states: is The time which the accused ab- contends the statute is not The computed sent from the state shall not be vague word re ambiguous—the or “accused” in the of limitation. to a fers appellant argues The that because the charged by stands indictment or information. a in the word “accused” is not defined term agree We the State’s definition of Criminal Procedure or in the Penal Code not tolled find the statute of was Code, meaning to be taken word is charged by was not in acceptation in its and understood “usual indictment or information when she left except specially language, the common state. art. 3.01 defined.” Tex.Code CRIM.PROC. statute, analysis To aid in we our (Vernon 1977). Code TexGov’t consult the Code Construction Act. Barbee 311.011(b) (Vernon 1988), provides that it State, 78, (Tex.Crim.App. 432 82 acquired phrases “words and have 1968). provides several factors act particular meaning, technical or whether § 311.023 we can consider. Tex.Gov’t Code legislative be definition or otherwise shall 1988). (Vernon accordingly.” construed statute, construing whether or not the appellant argues “ac the word is ambiguous considered meaning has acquired cused” a technical face, may among other a court consider analysis. must in our con we follow She matters the: an “accused” tends becomes made, has once formal accusation been (1) attained; object sought to be cites three cases that define the word within (2) under which the statute circumstances of the constitutional enacted; Jackson, 625, Michigan counsel. 475 U.S. (3) history; legislative 1409, 632, 1404, 106 L.Ed.2d 631 S.Ct. (4) statutory provi- common or former law (1986); Holloway v. 780 S.W.2d sions, including laws on the or simi- same (Tex.Crim.App.1989); n. 5 State v. Gari subjects; lar (Tex.App.—El 271 n. 1 bay, 838 S.W.2d pet.). Paso (5) consequences particular construc- as defined definition “accused” tion; must as right to counsel cases be the same (6) construction of the stat- administrative pur applied to the word “accused” for ute; and of limitations. We pose the statute (7) emergen- (caption), preamble, title agree. cy provision. possible meanings to the There are two has consider how the word “accused” 12.05(a): (1) in article when word “accused” interpreted provi- in former been Texas person who under indictment leaves is in dictionaries. sions and how it is defined (the leaving person is an “accused” when defined the word The 1925 Texas Penal Code Texas), case time when “accused” as: computed in person is of Texas is not outside manner, (2) who, limitations; legal [A]ny person or when offense, any stage an any crime held to answer for person who is not accused of (the com- proceeding, or whom person is not an “accused” leaves Texas Texas) charging plaint in a manner made indicted after lawful offense, an including proceedings all Cty., the defendant was with four the order for years arrest to the final execution burglary counts of nine after the last of the law. The word “defendant” burglary is used was committed. 22 Cal.3d (Cal.1978). same sense. Cal.Rptr. years burglaries Two after the were commit- The word accused is defined in Webster’s ted, job the defendant lost his in California Dictionary 3rd New International family and moved with his to Idaho where he (1976) offense, as “one esp: with an phone was listed in the book under his true a criminal ease....” In 1 burglaries, name. Id. Nine English (2d Dictionary, p. Oxford accomplice burglaries implicated to the 1989), ed. the word accused is defined as *4 the defendant. Id. The defendant contend- “charged with a crime or fault.” In Blace’s ed the statute of limitations had run and the DiCtionary (6th 1990), edition it is Law tolling provision apply did not himto because defined as: his prevent absence from California did not generic name for the a bringing the State from him to trial within criminal case. Person becomes “accused” period. the limitation Id. at 585 P.2d at meaning guarantee within speedy tri- statute, tolling 223. California’s section only point al at which either formal 803(d) Code, applies the Penal “if the indictment or information has been re- defendant is out of the state when or after him, against turned or when he becomes committed_” the offense is The court subject to actual liberty restraints on his tolling held the state’s statute was constitu- imposed by arrest, whichever first occurs. upheld tional and the conviction. The Cali- agree with appellant that she was tolling provision clearly fornia applies when person not a accused of a crime at the time person accused, is, becomes an if the she left Texas. tolling We hold the defendant is out of the state when indicted or apply “accused,” person until a is an committing leaves the state after the offense. is, person who has been accused tolling provision The California is not analo- committing Thus, State of a crime. gous tolling provision.1 to the Texas statute of limitations was not tolled and it analyzing tolling provision, the Texas has now run. prosecute The State cannot give we must the word “accused” its techni- appellant for testimony given her in 1981. particular cal and person formal- —a instead, We hold the vague; statute is not we ly accused of a crime. If the hold it clearly provides tolling provi- that the Legislature tolling provision intended the sion begins against accused, to run persons they who were unaecused at person unaccused of a crime left Texas and were accused of a crime when that leaves Texas. absence, their Legislature should have To hold that the word “accused” means drafted the statute so that it was clear that “any person who is later accused of a crime” (not “person” the time the “ac- is to emasculate the Legisla- intention of the cused”) is absent from the state is not com- Legislature ture. The did not intend to al- puted of limitation. delay low the prosecution State to until it point We sustain of error one on rehear- discovered a crime. The intention of the ing. tolling prevent statute was to those who have been with a escaping crime from point, Because we sustained this we do prosecution by fleeing the state. points need to reach the other error. We reverse and order the indictment We note that Supreme the California dismissed. upheld Court has conviction the face of challenges similar statute.
Scherling
Superior
OLIVER-PARROTT, C.J.,
Court
Santa Clara
dissenting.
1. We note that the
analogous
analy-
dissent cites several other
cases are
we
base our
jurisdictions
upheld tolling
that have
statutes on
sis on
construction.
grounds.
constitutional
We do not feel those
minor,
contributing
delinquency
REHEAR-
to the
DISSENTING OPINION ON
minor,
years
TEX-
ING
REMAND FROM THE
the crime
com-
ON
after
APPEALS
AS COURT OF CRIMINAL
mitted.
P.2d at 575-76. Sometime
crime,
Tex-
the defendant moved to
OLIVER-PARROTT, Chief Justice.
as,
years.
he
for 11
Id. The
lived
respectfully
“ac-
I
dissent. The word
vio-
defendant contended
generically
cused”
to a criminal defen-
refers
Equal
lated his
to travel
dant.
find the statute of limitations
would
Privileges
and Immunities
Protection
left
was tolled once
Mexi-
clauses of
Constitution.
New
deny
her
writ of
qualified his
court held the defendant
co
use of the
that the
state,
right to travel
he left the
12.05(a)
term
in article
creates
“accused”
Id. 799
at 577.1
upheld
conviction.
vague
person of
statute that
is so
that a
Supreme
upheld
of Wisconsin
intelligence
necessarily guess
must
common
to its
statute in
there is
meaning.
at its
The State contends
(1989).
Sher,
stitutionality MITCHELL, Ray Appellant, of the as violative of his statue Willie right Equal to travel Protection Privileges and Immunities clauses of the Texas, Appellee. The STATE of at 203. Constitution. Id. 489 P.2d The court if the held defendant remains No. 06-94-00058-CR. crime, state after the commission of a author- Court of crime, likely ities are more to detect Texarkana. identify defendant, and avoid extradition proceedings. court Id. The reasoned that Oct. 1994. Submitted justified assumption this Decided Jan. 1995. period during limitations for the which the may Rehearing Jan. have avoided detection Overruled 1995. jurisdiction. Id. 489 P.2d 203- Discretionary May Review Granted 1995. 204.3 In Scherling Superior Santa Cty., Cal.Rptr. Clara Cal.3d (1978), Supreme 223-24
Court of California discussed
travel when someone has committed a crime.
[Tjhere clearly a distinction between
one, who, like the leaves the crime,
state resulting after *6 of the statute of limitations absence,
during his and one who has com- deprived gov-
mitted no crime but merely
ernment benefit because he exer-
cises his travel another state. circumstance,
In the former the state has assuring interest that the defendant locally available enhance the
possibility of detection but also to avoid the
burdens of proceedings, extradition should charged,
he be his whereabouts become
known, and he to return refuses voluntari-
ly. agree reasoning
I Scherling. with the deny would the writ place Pennsylvania Lightman sonably 3. The statute in of abode or work ascertainable 108(f)(1) that the within 18 Pa.C.S. stated ing any tolled “dur- Commonwealth." added). (repealed) continuously (emphasis time when the accused is The court did absent from this or has no address the of the word "accused.” Commonwealth rea-