Howdy yall

I am in a unique situation that I have been unable to find an answer to in the case law.

The situation is as follows:

1/1/2021 Defendant is alleged to have committed an assault bodily injury family violence. The case is referred to grand jury but never filed as venue could not be established. The relevant information on venue is it occurred on a roadway in a moving vehicle, and it was unclear if it occurred in Brazoria, Galveston, or Harris.

4/24/2021 Defendant is alleged to have committed a Assault Family Violence Choking against the same vic. This clearly occurred in Brazoria. During the course of that choking, the defendant also punched the victim repeatedly leaving lots of good physical injury. This case is subsequently true billed some two months later.

Reviewing the case and our counties juries track record with choking cases, this will likely not sell. Our juries historically have not found a choking case guilty and have always found the lesser included AFV. However, with the new case law barring that lesser, I am looking for better options.

Mow I am looking at continuous family violence. This would also deal with the venue issue. However, there is a concern that because the component AFV cases our outside the statute of limitations, the felony charge would be barred. I have not found case law one way or the other on the matter.

Additionally, another wrench in the matter is technically the two component AFV cases are AFV w/prior, however because of matters outside the scope of this question, we will not charge AFV w/prior.

So, the question is what is the statute of limitations of Continuous Violence Against the Family? Limitations statute (at the time) would say three, but the component misdemeanors are only two and now barred.

My thought is the statute has not tolled as the specific offense is a felony, so 3 (at the time) and the component AFVs would also have been 3. Additionally, the change to the limitations statute for continuous family violence seems to indicate this is the case as the limitations period is now 5 years. It would not make sense to increase the limitations period of the offense if the components would bar the prosecution after 2 years.

I appreciate any help or guidance that can be offered.

This message has been edited. Last edited by: HunterW,

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However, there is a concern that because the component AFV cases our outside the statute of limitations, the felony charge would be barred. I have not found case law one way or the other on the matter.

Why would a shorter limitation on the lesser component offenses impact a specific five-year period on the greater offense? That would defeat the legislative intent behind having a specific period for the felony offense, wouldn't it? In the absence of a case directly on point, I think you are entitled to run with that charging decision.

Not sure this will work but may be worth the try.

Although not a perfect analogy, the look-back period in §25.11(a) should receive the same construction as was given to §49.09(b), meaning it is immaterial when the first AFV offense occurred (so long as not more than 12 months earlier).

In any event, presumably limitation starts to run from the date of the second offense (which is the conduct that defines the gravamen (continuity) of the offense). See also 40 Tex. Crim. Prac. & Proc. §6:40, which states: "Ordinarily, the offense is committed when all of its elements are present," so that is when the limitations period would begin to run.

quote:

Originally posted by Shannon Edmonds:

quote:

However, there is a concern that because the component AFV cases our outside the statute of limitations, the felony charge would be barred. I have not found case law one way or the other on the matter.

Why would a shorter limitation on the lesser component offenses impact a specific five-year period on the greater offense? That would defeat the legislative intent behind having a specific period for the felony offense, wouldn't it? In the absence of a case directly on point, I think you are entitled to run with that charging decision.

That was exactly my belief, but the issue was raised in the office and so I began searching for an answer. Unfortunately, I could not find something on point.

I agree with you completely.

After the new indictment in the case the defendant plead. All worked out in the end. Thanks for everyone's input.