Supreme Court of the United States

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No. _________
================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------THE STATE OF TEXAS,
Petitioner,
v.
WILLIAM RAY PHILLIPS,
Respondent.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The Texas Court Of Criminal Appeals
---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI
---------------------------------♦--------------------------------ABELINO ‘ABEL’ REYNA
Criminal District Attorney
McLennan County, Texas
ALEX J. BELL
Chief Assistant
APPELLATE DIVISION
MICHAEL JARRETT
First Assistant
JOSEPH LAYMAN*
Assistant
219 N. 6th St., Suite 200
Waco, Texas 76701
(254) 757-5084
[email protected]
*Counsel of Record
Counsel for Petitioner
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
QUESTION PRESENTED
This Court, in Johnson v. United States, 529 U.S.
694 (2000), made clear that the text of the ex post
facto clause of the United States Constitution is a
limitation upon the powers of the legislature and does
not apply to the judicial branch of government and
that ‘judicial retroactivity’ is not a cognizable claim
under the clause. The question presented is:
Can the application of a law by a trial court to a
criminal defendant violate the ex post facto clause of
the U.S. Constitution where the law itself prohibits
retroactive application?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
TABLE OF AUTHORITIES .................................
iii
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.......................................
2
STATEMENT OF THE CASE ..............................
3
REASONS FOR GRANTING THE PETITION .....
6
A.
B.
THE TEXAS COURT OF CRIMINAL
APPEALS INCORRECTLY APPLIED
THIS COURT’S PRECEDENT ON THE
EX POST FACTO PROVISIONS OF THE
U.S. CONSTITUTION ...............................
6
THE HIGHEST COURTS OF SEVERAL
OTHER STATES HAVE MADE THE
SAME ERROR, WHICH ONLY THIS
COURT CAN CORRECT ............................ 13
CONCLUSION..................................................... 15
APPENDIX
Opinion of the Court of Criminal Appeals .......... App. 1
Opinion of the Tenth Court of Appeals ............. App. 46
Order Denying State’s Motion for Rehearing .... App. 54
iii
TABLE OF AUTHORITIES
Page
CASES:
Blue v. State, 125 S.W.3d 491 (Tex. Crim. App.
2003) ........................................................................12
Calder v. Bull, 3 U.S. 386 (1798) .............................7, 9
Carmell v. Texas, 529 U.S. 513 (2000) .........................9
Commonwealth v. Rocheleau, 533 N.E.2d 1333
(Mass. 1989) ............................................................14
Grimes v. State, 807 S.W.2d 582 (Tex. Crim.
App. 1991). .......................................................... 6, 11
Ieppert v. State, 908 S.W.2d 217 (Tex. Crim.
App. 1995) ............................................................... 11
Johnson v. United States, 529 U.S. 694
(2000) ......................................................... 5, 8, 11, 14
Marks v. United States, 430 U.S. 188 (1977) .........8, 12
Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App.
2002) ........................................................................ 11
People v. Shedd, 702 P.2d 267 (Colo. 1985)................14
Proctor v. State, 967 S.W.2d 840 (Tex. Crim.
App. 1998) ...............................................................12
Rogers v. Tennessee, 532 U.S. 451 (2001) ..... 5, 8, 12, 14
Scott v. State, 55 S.W.3d 593 (Tex. Crim. App.
2001) ....................................................................9, 10
Seling v. Young, 531 U.S. 250 (2001) ...................7, 8, 9
State v. Garcia, 169 P.3d 1069 (Kan. 2007) ...............14
Stogner v. California, 539 U.S. 607 (2003) .... 10, 11, 14
iv
TABLE OF AUTHORITIES – Continued
Page
United States v. Christian Echoes Nat’l Ministry, Inc., 404 U.S. 561 (1972) ....................................8
United States v. Marion, 404 U.S. 307 (1971) ...........10
Weaver v. Graham, 450 U.S. 24 (1981) .................. 8, 11
STATUTES:
Texas Code of Criminal Procedure art. 12.01
(West 2007) .................................................... 2, 3, 4, 9
28 U.S.C. § 1257(a) .......................................................1
CONSTITUTIONAL PROVISIONS:
Texas Constitution art. I, § 16......................................6
United States Constitution, art. I, § 10 .................2, 12
1
OPINIONS BELOW
Respondent, William Ray Phillips, was convicted
in 2007 of abusing his daughter in 1982 and 1983.
The opinion of the Court of Appeals for the Tenth
Supreme Judicial District of Texas, App. 46, affirming
the convictions, was not reported but may be located
at 2009 Tex. App. LEXIS 6864 (Tex. App.–Waco,
August 26, 2009). The opinion of the Texas Court of
Criminal Appeals, App. 1, reversing the convictions,
is to be reported in the Southwest Reporter, 3rd Ed.,
but may be located at 2011 Tex. Crim. App. LEXIS
1218 (Tex. Crim. App., September 14, 2011). The
Court’s denial of Petitioner’s Motion for Rehearing,
App. 58, was not reported.
---------------------------------♦---------------------------------
JURISDICTION
This Court has jurisdiction under 28 U.S.C.
§ 1257(a) because the validity of a statute of the State
of Texas was in question on the ground of its being
repugnant to the Constitution of the United States, or
alternatively that the case was decided upon a right,
privilege, or immunity specially set up or claimed
under the Constitution of the United States.
---------------------------------♦---------------------------------
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution, art. I, § 10:
“No state shall . . . pass any . . . ex post facto
Law.”
Texas Code of Criminal Procedure art. 12.01:
“Except as provided in Article 12.03, felony
indictments may be presented within these
limits, and not afterward:
...
(5) ten years from the 18th birthday of the
victim of the offense:
(A) indecency with a child under Section 21.11(a)(1), Penal Code;
(B) sexual assault under
22.011(a)(2), Penal Code;
Section
...”
The Act further provides:
“The change in the law made by this Act
does not apply to an offense if the prosecution of the offense became barred by limitation before the effective date of this Act
(September 1, 2007). The prosecution of that
offense remains barred as though this Act
had not taken effect.”
---------------------------------♦---------------------------------
3
STATEMENT OF THE CASE
Statutes of limitation are defenses granted by the
legislatures of the federal government and of the
several states. A criminal defendant is entitled to rely
upon the statute of limitations in effect at the time he
commits his crime. The various legislatures may
extend the time limit for holding a criminal accountable, but only if the limitations period has not already
expired. Once a statute of limitations has run on the
commission of a particular crime, the legislature may
not revive it by retroactively extending the statute of
limitations. This Court has held that such retroactive
legislation, intended to revive causes of action where
the previous statute of limitation expired, violates the
United State’s Constitution’s prohibition on the
passage of ex post facto laws, because the law increases the punishment, since all liability had expired.
Many state legislatures, including Texas, have
amended their criminal statutes of limitation several
times over the last 20 or 30 years to extend the time
in which criminal charges may be brought, especially
in the area of child sex crimes. These numerous
changes can make it difficult to determine which
statutory amendment, or enacted version of the
limitations statute, applies to a particular case and
which does not, especially in cases where a significant
period of time has passed since the offense.
In Phillips’ case, the relevant statute of limitations, Texas Code of Criminal Procedure art. 12.01,
4
has been amended at least four times since his offenses were committed. While article 12.01 was
lawfully extended to ten years as it applied to Phillips, the limitations period expired in 1993 at the
latest. After his 2007 indictment for offenses committed between 1982 and 1983, he did not raise a statute
of limitations defense before trial as Texas law requires. At trial, the jury was instructed on a statute
of limitations issue using the law in effect at the time
of trial, which took effect in 1997. It is not clear from
the record which party, if any, requested the instruction but neither the State nor Phillips objected. The
jury returned guilty verdicts on all counts.
Phillips argued on appeal that the trial court had
applied the wrong amendment to the limitations
statute in the jury charge. The Tenth Court of Appeals disagreed. In the Court of Criminal Appeals
(CCA), the State conceded this error, but argued that
Phillips had failed to preserve it, since there were no
objections to the jury charge. Phillips argued that
even though the 1997 amendment was expressly
inapplicable to him and the amendment clearly
stated that it was not effective retroactively, that the
trial court’s application of that version of the statute
to him violated the ex post facto protections of the
federal constitution. The Court of Criminal Appeals
agreed with Phillips, holding that the ex post facto
clause restrained a trial court from applying the
wrong version of the statute to Phillips because it
gave the law retroactive effect.
In a dissent authored by Chief Justice Keller, she
and two fellow justices explained that the error in
5
Phillips’ case was not with the constitutionality of the
statute or any act of the Texas legislature. Phillips’
complaint was that he had been prosecuted after the
applicable statute of limitations had run. His failure
to assert his defense pre-trial or insist that the correct statute be applied in the jury charge waived any
error.
The dissent quoted from this Court’s opinion in
Johnson v. United States, 529 U.S. 694 (2000), which
stated that the hallmark of the ex post facto protection is that it restrains the legislature from passing
certain laws; it does not restrain trial courts from
applying the wrong law which has the incidental
effect of retroactive application. Phillips’ only viable
claim was merely a standard statute of limitations
defense which he and his trial counsel failed to assert
in a timely manner.
Petitioner asks this Court to review the decision
of the Court of Criminal Appeals because it is in
direct conflict with this Court’s opinions on the ex post
facto clause in Johnson v. United States and Rogers v.
Tennessee, 532 U.S. 451 (2001). A trial court’s erroneous retroactive application of a statute does not give
rise to an ex post facto problem, but that the statute
itself must have retroactive effect. Allowing this error
to go uncorrected substantially increases the scope
and reach of the ex post facto prohibition to restrain
the judiciary, not just the legislatures of the federal
government and of the several states. This Court has
repeatedly rejected such an expansion, refusing to
recognize ‘judicial retroactivity’ as a cognizable claim.
6
The ex post facto prohibition is a restraint on the
legislative power. It does not speak to choice of law
errors in trial courts or act as a restraint on the
power granted to the judiciary.
This Court should act to prevent this unprecedented expansion of the ex post facto clause, as it is
inconsistent with, and unsupportable under, prior
decisions.
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE PETITION
A.
THE TEXAS COURT OF CRIMINAL APPEALS INCORRECTLY APPLIED THIS
COURT’S PRECEDENT ON THE EX POST
FACTO PROVISIONS OF THE U.S. CONSTITUTION.
First, this case involves the interpretation of the
United States Constitution and this Court’s precedent
regarding the ex post facto prohibition. Though the
Texas Court of Criminal Appeals has the power to
characterize a violation of the ex post facto clause of
the federal constitution as an absolute, systemic right
under its own precedents, it has no authority to
redefine the meaning of the clause.1
1
Texas’ constitutional prohibition is coextensive with the
federal constitution and provides the same protections. Grimes
v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991); Texas
Constitution art. I, § 16.
7
The interpretation of the ex post facto clause in
this case is in direct conflict with this Court’s precedent. Prior opinions have been clear on the meaning
and applicability of the clause. “The plain and obvious
meaning and intention of the prohibition is this; that
the Legislatures of the several states, shall not pass
laws, after a fact done by a subject, or citizen, which
shall have relation to such fact, and shall punish him
for having done it.” Calder v. Bull, 3 U.S. 386, 390
(1798) (emphasis added). There are four types of
violations of the clause:
1.
Every law that makes an action done before
the passing of the law, and which was innocent when done, criminal; and punishes such
action.
2.
Every law that aggravates a crime, or makes
it greater than it was, when committed.
3.
Every law that changes the punishment, and
inflicts a greater punishment, than the law
annexed to the crime, when committed.
4.
Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of
the commission of the offense, no order to
convict the offense.
Id. (emphasis added). “The very wording of the
Ex Post Facto Clause . . . leaves no doubt that it is a
prohibition upon legislative action,” and that subsequent executive implementation is irrelevant. Seling
8
v. Young, 531 U.S. 250, 269 n.1 (2001) (Scalia, J.,
concurring).
Two critical elements must be present for a
criminal or penal law to be ex post facto. Weaver v.
Graham, 450 U.S. 24, 29 (1981). The first, relevant
here, is that it must be retrospective, that is, it must
apply to events occurring before its enactment. Id.
Thus, it is necessary to determine if the Legislature
intended the law to operate retroactively. Johnson v.
United States, 529 U.S. 694, 701-702 (2000). “Judicial
retroactivity” is not cognizable as an ex post facto
claim. “As the text of the Clause makes clear, it is a
limitation upon the powers of the Legislature, and
does not of its own force apply to the Judicial Branch
of government.” Rogers v. Tennessee, 532 U.S. 451,
456 (2001) (quoting Marks v. United States, 430 U.S.
188, 191 (1977)). Nor can a single prosecution create
an ex post facto violation. Just as an act, found to be
civil, cannot be deemed punitive “as applied” to an
individual in violation of the double jeopardy and ex
post facto clauses, Seling v. Young, 531 U.S. 250, 267
(2001), an act that prohibits retroactive application
on its face cannot be retroactive “as applied” in any
accepted meaning of the term. See United States v.
Christian Echoes Nat’l Ministry, Inc., 404 U.S. 561,
565 (1972) (“as-applied” challenges require “that the
section, by its own terms, infringed constitutional
freedoms in the circumstances of the particular
case.”). The nature of the statute cannot be altered
based merely on vagaries in its implementation.
Young, 531 U.S. at 263. As such, any “as-applied”
9
analysis for ex post facto claims under the circumstances in this case is “fundamentally flawed.” Id. at
265 (rejecting a conclusion similar to the majority’s in
the CCA, reached by the Ninth Circuit Court of
Appeals).
The Court of Criminal Appeals held that the ex
post facto clause applies not just to facially retroactive laws passed by the legislature, but also to laws
that are applied retroactively by trial courts. App. 9.
The opinion cites several opinions in support of this
conclusion, but all of those cases involved statutes
that were clearly retroactive.2 In Carmell v. Texas,
529 U.S. 513 (2000), this Court held that a new
procedural statute that lowered the evidence needed
to procure a conviction violated the ex post facto
clause because it fell into the fourth Calder v. Bull
category. 529 U.S. 513 (2000). The statute was not
clearly limited to prospective application. This was a
failure of the legislature. The statute in this case
includes a provision expressly disclaiming retroactive
application. Texas Code of Criminal Procedure art.
12.01; App. 40-41. In Scott v. State, prosecutors were
not allowed to use a prior deferred adjudicated offense for enhancement because the statute in effect at
the time of the offense explicitly restricted the collateral consequences of that offense and the defendant
was entitled to rely upon that restriction. 55 S.W.3d
2
That is, the statutes did not expressly prohibit retroactive
application or effect on their face.
10
593 (Tex. Crim. App. 2001). Scott argued, beginning
in the trial court when he was on trial for a different
offense, that the statute applied to him and that
applying the newer statute would retroactively increase the punishment for his offense. Id. at 597-98.
The Court of Criminal Appeals agreed. In this case,
the newer statute was clearly inapplicable to Phillips
and he never demanded that the trial court apply the
correct law to him.
The Court of Criminal Appeals also held that
punishment for a time-barred offense constitutes an
unlawful ex post facto application of the law. App. 11,
citing United States v. Marion, 404 U.S. 307, 322
(1971) (“there is an irrebuttable presumption that a
defendant’s right to a fair trial would be prejudiced”
after the relevant limitations period has expired.)
First, the quote from Marion is dicta, as it was not
essential to the holding of that case because the
statute of limitations had not expired. Id. at 325.
Second, this Court has never held that a statutory
limitations defense becomes a constitutional right
when the period for culpability expires, unless a state
or federal legislature attempts to revive an expired
limitations period by altering the statute. See Stogner
v. California, 539 U.S. 607 (2003).
Finally, this case is not analogous to Stogner v.
California, 593 U.S. 607 (2003) where the statute was
expressly intended to revive time-barred prosecutions. The Court of Criminal Appeals recognized that
Phillips’ situation was different than the case in
Stogner because the statute in question was not
11
facially retroactive and did not properly apply to
Phillips. App. 23. However, the majority opinion
merely glosses over the distinction by saying that it is
“irrelevant because the ex post facto result is the
same – the retroactive application . . . “revived” a
previously barred prosecution.” Id. The majority’s
reasoning ignores the hallmark of the protection, that
it enjoins the acts of legislatures, not courts. Also,
nothing here was “revived.” Phillips failed to timely
assert his statute of limitations defense. Had he
objected to the application of the wrong statute to his
case in the jury charge, the appellate courts could
have dealt with the simple choice of law issue: does
the old statute apply to Phillips or does the newer
statute? The question is easily resolved. But instead,
the majority took a choice-of-law error and turned it
into something it is not: a constitutional error.
Until the decision below from the CCA, that court
had recognized this plain meaning of the ex post facto
clause. See Ortiz v. State, 93 S.W.3d 79, 91 (Tex. Crim.
App. 2002) (in both the federal and state prohibitions,
“the language is directed at the Legislature, not the
courts” and “an ex post facto problem does not arise
from a trial court’s erroneous retroactive application
of a statute, but only if the statute itself has retroactive effect”) citing Johnson v. United States; Ieppert v.
State, 908 S.W.2d 217, 220 (Tex. Crim. App. 1995) (the
prohibition is against “the enactment of laws”);
Grimes v. State, 807 S.W.2d 582, 587 (Tex. Crim. App.
1991) (quoting Weaver, supra) (emphasis added)
(“When a court engages in ex post facto analysis, [it
12
should be] concerned solely with whether a statute
assigns more disadvantageous criminal or penal
consequences to an act than did the law in place
when the act occurred[.]”); Proctor v. State, 967
S.W.2d 840, 845 (Tex. Crim. App. 1998) (citing Marks,
supra) (“The Ex Post Facto Clause of Article I, sec. 10,
of the United States Constitution is a limitation upon
the powers of state legislatures and not state
courts.”); Blue v. State, 125 S.W.3d 491, 500 (Tex.
Crim. App. 2003) (citing Rogers, supra) (the ex post
facto clause of the federal constitution does not apply
to the act of this Court).
The dissenting opinion explains the crux of the
issue on the very first page: statutes that are expressly limited to prospective application can never violate
the ex post facto clause. App. 28. Any application that
cuts against the plain language of the statute is
merely a statutory error, not a constitutional one.
Laws are always subject to misapplication by judges
and litigants, but their errors are not within the
purview of the clause because it is a restriction on
legislative power, not implementation or application.
There are other remedies for the incorrect application
of the law. In this case, the proper statute of limitations defense could have been raised before trial or
Phillips’ trial counsel could have objected to the
inclusion of the incorrect statute in the jury charge
because the Texas legislature clearly indicated that
the statute of limitations it passed was inapplicable
to Phillips by including a savings clause. App. 40.
That the trial court applied the wrong law or ignored
13
its dictates does not mean that the legislature passed
an ex post facto law.
This Court should act to prevent the unintended
consequences that are bound to result from this new
interpretation of ex post facto jurisprudence. Statute of
limitations defenses, which are mere statutory bars
to prosecution and are waiveable, will suddenly
become an absolute constitutional defense, where a
defendant will always be able to hold his complete
defense in reserve until after the trial, and then
assert his constitutional defense on appeal. Statutes
of limitation were never meant to operate this way.
They are a windfall to defendants. States across the
country are continuing to roll back their protection
and extend time periods to prevent exactly what
happened in this case: a late outcry, a defendant
whose guilt is not seriously in question, and the
inability of prosecutors to do anything about it now
because too much time has passed. However, Phillips
only had to ask for his defense to receive it. In Texas,
the defense must be asserted prior to trial or it is
forfeited. Phillips did not assert his defense. There
should be no procedural “back door” for him now.
B.
THE HIGHEST COURTS OF SEVERAL
OTHER STATES HAVE MADE THE SAME
ERROR, WHICH ONLY THIS COURT CAN
CORRECT.
The highest courts of at least two other states
have erroneously recognized ‘judicial retroactivity’ as
14
a proper claim under the ex post facto protections of
the United States Constitution. Granting certiorari in
this case is the only way to correct this State/Federal
split in the law.
In the State of Colorado, the principal case
addressing this issue is People v. Shedd, 702 P.2d 267
(Colo. 1985) (en banc) (per curiam). The court held,
as in Phillips’ case, that retroactive application of a
statute of limitations to revive a previously barred
prosecution violates the fundamental constitutional
prohibition against ex post facto legislation. Id. at
268, (emphasis added). In the state of Massachusetts,
the court reached a similar holding in Commonwealth
v. Rocheleau, 533 N.E.2d 1333, 1334 (Mass. 1989).
These holdings are inconsistent with this Court’s
precedent for the same reasons as the CCA’s opinion
in this case. The CCA was also wrong to rely upon
these opinions because they were decided before this
Court’s opinions in Johnson and Rogers. These holdings should be expressly overruled.
The Court of Criminal Appeals also cited a case
from Kansas, State v. Garcia, 169 P.3d 1069 (Kan.
2007), in support if its position. However, that case
involved a Stogner-type issue where the legislature
had retroactively revived the defendant’s offense,
where it had originally expired under the old statute.
Id. at 1075. It offers no support for the CCA’s position.
In order to prevent further misinterpretation of
this Court’s precedent, certiorari should be granted so
that this case may be considered on the merits to
15
resolve the split between Texas, these other states,
and federal precedent on the ex post facto clause.
---------------------------------♦---------------------------------
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted so that the Court may
resolve this important issue.
Respectfully submitted,
ABELINO ‘ABEL’ REYNA
Criminal District Attorney
McLennan County, Texas
ALEX J. BELL
Chief Assistant
APPELLATE DIVISION
MICHAEL JARRETT
First Assistant
JOSEPH LAYMAN*
Assistant
219 N. 6th St., Suite 200
Waco, Texas 76701
(254) 757-5084
[email protected]
*Counsel of Record
Counsel for Petitioner
App. 1
[SEAL]
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1402-09
WILLIAM RAY PHILLIPS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION
FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY
(Filed Jun. 15, 2011)
COCHRAN, J., delivered the opinion of the
Court in which PRICE, WOMACK, JOHNSON and
ALCALA, JJ., joined. KELLER, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ.,
joined. MEYERS, J., did not participate.
OPINION
Appellant was convicted of twelve counts of
sexual offenses against his daughter that occurred in
1982 and 1983. But prosecution under the 2007
indictment charging appellant was absolutely barred
by the statute of limitations in 1993. These charges
could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. No
App. 2
one – not the trial judge, the prosecutor, the defense,
or the court of appeals – recognized this constitutional ex post facto violation. Because this is an
important constitutional issue that will undoubtedly
recur given the even more recent statutory elimination of the statute of limitations for some sexual
offenses, we granted appellant’s petition for discretionary review.1 Although the State Prosecuting Attorney (SPA) agrees that the statute of limitations
had run before appellant’s indictment, she argues
1
Appellant’s three grounds for review read as follows.
1.
Did the [intermediate] appellate court improperly
apply the decision in Stogner v. California, 539
U.S. 607 (2003) allowing convictions for offenses
which had been extinguished by the running of
limitations and thereby violate the ex post facto
provisions of the Texas and Federal Constitutions?
2.
Did the [intermediate] appellate court improperly
interpret the ex post facto and retroactive law
prohibitions of the Texas and Federal Constitutions and thereby allow convictions for timebarred offenses that contained different elements
with different available defenses that had been
repealed and were incapable of being prosecuted
by the State?
3.
The Court improperly charged the jury as to the
correct statute of limitations and thereby caused
Petitioner egregious harm and this cause should
be remanded for a harm analysis consistent with
Almanza v. State, 686 S.W.2d 157 (Tex. Crim
App. 1984).
Because we agree with appellant on his first ground for review,
we dismiss the second and third grounds.
App. 3
that appellant failed to preserve this issue for appeal
because he did not object in the trial court. We reaffirm our prior opinions that have stated that an
absolute statute-of-limitations bar is not forfeited by
the failure to raise it in the trial court. We reverse the
court of appeals, which held that appellant’s prosecution was not barred.2
I.
S.P. ran into her father, appellant, in 2005 when
she was 26 and going to school in Waco. He, too, was
living in Waco. She was scared because appellant had
sexually abused her when she was a toddler, and she
had thought she was rid of him. She did not know
what to do. She had gone to the FBI with allegations
of abuse before, but she was told that it was too late
– that the statute of limitations had run on any
offenses occurring in 1982 or 1983, when she was two
to four years old. S.P. called the Waco police to find
out where her father lived so she “would know where
to stay away. I wanted to finish school, but I wanted
to feel safe. I didn’t know if I could get a protective
order.” The police suggested that she go to the Advocacy Center in Waco for counseling. She did. One
thing led to another, and in 2007 appellant was
charged with various sexual offenses against S.P.
2
Phillips v. State, No. 10-07-00346-CR, 2009 WL 2644430
(Tex. App – Waco Aug. 26, 2009) (not designated for publication).
App. 4
occurring “on or about” specified dates from September 30, 1982, to November 1, 1983.3
It was the State’s theory at trial that, because the
offenses alleged occurred within three years (the
original statute of limitations) of the 1985 amendments to the statute of limitations, the offenses could
be carried forward under each successive amendment
to the 1997 limitations period of ten years after the
victim’s eighteenth birthday. The January 10, 2007
3
The offenses included aggravated sexual abuse, indecency
with a child by contact, indecency with a child by exposure, aggravated rape of a child, and aggravated sexual assault.
The latest offense in the indictment was count 12, alleging
an aggravated sexual assault on or about November 1, 1983.
Until September 1, 1983, the limitations period was three years.
TEX. CODE CRIM. PROC. art. 12.01 (Vernon 1981). Effective September 1, 1983, the limitations period for aggravated sexual assault was increased to five years. Act of May 31, 1983, 68th Leg.,
R.S., ch. 977, §§ 7, 14, 1983 Tex. Gen. Laws 5317. So, prosecution for count 12 would be barred after November 1, 1988. But
before those five years were up, the legislature again extended
the statute of limitations. Effective September 1, 1987, the
limitations period for aggravated sexual assault of a child was
increased to ten years. See Act of June 1, 1987, 70th Leg., R.S.,
ch. 716, §§ 1, 3, 1987 Tex. Gen Laws 2591. So, prosecution for
count 12 would be barred after November 1, 1993. The limitations statute was not amended again until 1997, almost four
years after this prosecution was barred. Effective September 1,
1997, the limitations period for aggravated sexual assault was
“ten years from the 18th birthday of the victim of the offense.”
Act of May 28, 1997, 75th Leg., R.S., ch. 740, §§ 1, 4, 1997 Tex.
Gen. Laws 2403. Because count 12 was already barred at the
time the amendment became effective, application of the 1997
amendment violated the Ex Post Facto Clause. All of the other
alleged offenses, having occurred earlier, were also barred.
App. 5
indictment was filed just weeks before S.P.’s twentyeighth birthday.
At voir dire, the State explained to potential
jurors its theory of why prosecution of appellant’s
twenty-five-year-old crimes was not barred:
The law used to be, back when I started this,
that if we didn’t get them indicted within five
years after the event occurred that the statute of limitations ran and we couldn’t charge
them. So that meant the kid had to report it,
the investigation had to take place, and we
had to get the case to the Grand Jury within
five years after it happened or they – they
walk. They never get caught.
And then it switched to where it was ten
years. We had to get it investigated, the kid
had to report it, we had to go to the Grand
Jury, and we had to get the charges filed
within ten years after the 18th birthday of
the victim. Well, do the math, 18 plus ten,
you get until they turn 28.
Well, this last fall guess what they did?
There’s no statute of limitations anymore.
It’s whenever we want to. And so . . . that’s
part of the reason why we end up in situations like this because the legislature had
continued to make the statute of limitations
longer and longer.
At trial, S.P. testified that she had lived with
her mother, but, until she was five years old, she
regularly visited her father. She recounted several
App. 6
episodes during these visits in which he, and sometimes his friends, would sexually assault her and take
pornographic photos of her. The earliest such episode
occurred when she was two. The abuse subsided
when, at age four, she moved to East Texas.
In her closing argument, the prosecutor argued
that any offense occurring before September 1, 1982,
was barred by the statute of limitations, but those
committed after that date would not be barred because “limitations changed. . . . [I]t changed so anything after that is not barred by the statute of
limitations as long as the indictment was returned
before [S.P.] turned 28. And that was January the
26th of 2007.”
In his written charge, the trial judge instructed
the jury that “the Court has taken judicial notice that
the date in the indictment in this case . . . was January 10, 2007, and that the statute of limitations for
the offense charged in the indictment is not more
than ten years beyond the 18th birthday of [S.P.].”
Appellant made no objection to the charge and did not
otherwise raise a complaint based on limitations. The
jury found appellant guilty on all counts, and sentenced him to the maximum punishment on each.
On direct appeal appellant argued, for the first
time, that the ex post facto provisions of the Texas
and federal constitutions were violated because the
applicable limitations period had expired before the
1997 limitations statute became effective. The court
of appeals assumed, without deciding, that the ex post
App. 7
facto issue was not forfeited and agreed with the
State’s theory: Because the charged offenses were
committed within three years (the original limitations period) of the limitations amendment that took
effect in 1985, they could be carried forward under
each successive amendment to the 1997 limitations
period of ten years after the victim’s eighteenth birthday.4 Appellant petitioned this Court for review, arguing that his offenses had been extinguished by the
running of limitations and could not be revived by the
1997 version of the statute of limitations without
violating the Ex Post Facto Clause of both the federal
and Texas constitutions.
Before this Court, the SPA candidly admits that
the State was mistaken at trial and on direct appeal
and agrees with appellant that the statute of limitations had run by 1993.5 The SPA argues, however,
that because appellant did not object to the limitations bar at trial, he cannot raise it now.
4
Phillips v. State, No. 10-07-00346-CR, 2009 WL 2644430,
at *2 (Tex. App. – Waco Aug. 26, 2009) (not designated for
publication).
5
SPA’s Brief at 2-3 (“All the parties at trial, and the State
and Tenth Court on appeal, believed the statutes of limitations
applicable to the twelve counts against appellant were extended
by successive amendments to article 12.01 of the Texas Code of
Criminal Procedure. They were not. Because the Tenth Court
proceeded to mistakenly adopt the State’s secondary argument,
the threshold issue of preservation must be addressed.”).
App. 8
II.
A. The “Absolute” Right to Be Free from the
Application of Ex Post Facto Laws.
1. The four Calder v. Bull categories.
An ex post facto law is one “passed after the
occurrence of a fact or commission of an act, which
retrospectively changes the legal consequences or relations of such fact or deed.”6 The United States and
Texas constitutions both forbid ex post facto laws.7 In
1798, the Supreme Court set out the four categories
of ex post facto laws in Calder v. Bull:8
1st. Every law that makes an action done before the passing of the law, and which was
innocent when done, criminal; and punishes
such action. 2d. Every law that aggravates a
crime, or makes it greater than it was, when
committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed to the crime,
when committed. 4th. Every law that alters
the legal rules of evidence, and receives less,
or different, testimony, than the law required
at the time of the commission of the offence,
in order to convict the offender. All these,
6
7
BLACK’S LAW DICTIONARY 580 (6th ed. 1990).
U.S. CONST. art. I, §§ 9 cl. 3, 10 cl. 1; TEX. CONST. art. I,
§ 16.
8
3 U.S. 386 (1798).
App. 9
and similar laws, are manifestly unjust and
oppressive.9
The Ex Post Facto Clause applies not only to laws
that are facially retroactive, but also to laws that are
applied retroactively. For example, in Carmell v.
10
Texas, the Supreme Court held that a revised version of Texas Code of Criminal Procedure Article
38.07, which lessened “the quantum of evidence required to convict,” fell “squarely” into the fourth
Calder v. Bull category when that law was applied
11
retroactively. The revised Article 38.07 authorized
conviction of certain sexual offenses on the victim’s
testimony alone, although corroborating evidence had
previously been required.12 Thus, application of the
new law to Carmell – who had committed the offense
before the law was enacted – ran afoul of the constitutional prohibition against ex post facto laws even
though the law itself was not facially retroactive.
Similarly, in Scott v. State,13 Presiding Judge
Keller, writing for a unanimous court, held that the
Ex Post Facto Clause prohibited the use of a successfully completed deferred adjudication to enhance the
punishment for a later offense when the statute
permitting such an enhancement “did not exist at the
9
Id. at 390-91.
529 U.S. 513 (2000).
11
Id. at 530-31.
12
Id. at 517-19.
13
55 S.W.3d 593 (Tex. Crim. App. 2001).
10
App. 10
time adjudication was deferred.”14 The defendant had
pled guilty in 1991 to indecency with a child and successfully completed his deferred-adjudication probation.15 At that time, the deferred-adjudication statute
provided that a successfully discharged probation
would not be considered a conviction for purposes of
enhancement.16 In 1997, the Legislature amended the
law to make deferred adjudication for a sex offense
count as a prior conviction for purposes of imposing
an automatic life sentence for a second sex-offense
conviction.17 Although the statutory amendment was
not facially retroactive – indeed it contained the standard savings clauses – this Court held that its application to the defendant violated the Ex Post Facto
Clause.
[W]hen a statute explicitly restricts the collateral consequences of an offense, the defendant is entitled to rely on that restriction.
Punishment for the offense is increased by
the removal of the statutory restriction, and
such an increase in punishment constitutes
an ex post facto law.18
Applying the Scott reasoning in the context of a
statute-of-limitations bar, when a statute explicitly
restricts the statute of limitations to a particular
14
15
16
17
18
Id. at 595, 597-98.
Id. at 595.
Id.
Id. at 595-96.
Id. at 597-98.
App. 11
period – such as, in this case, a total of ten years –
the defendant is entitled to rely on that restriction.
Once that period expires, “there is an irrebuttable
presumption that a defendant’s right to a fair trial
would be prejudiced.”19 And punishment for such a
time-barred offense constitutes an ex post facto application of the law.
2. The right to be free from the application
of ex post facto laws is an “absolute” one.
The right to be free from ex post facto laws or the
ex post facto application of a law is an “absolute” right
– a first category Marin right.20 It cannot be waived or
forfeited. In Ieppert v. State,21 we stated,
ex post facto prohibitions do not merely confer upon the people a waivable or forfeitable
right not to have their conduct penalized retroactively. Indeed, the constitutional prohibition against ex post facto legislation is not
really an individual right at all. It is a categorical prohibition directed by the people to
their government. Short of a constitutional
19
United States v. Marion, 404 U.S. 307, 322 (1971).
See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.
1993) (“[O]ur system may be thought to contain rules of three
distinct kinds: (1) absolute requirements and prohibitions;
(2) rights of litigants which must be implemented by the system
unless expressly waived; and (3) rights of litigants which are to
be implemented upon request.”), overruled on other grounds by
Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).
21
908 S.W.2d 217 (Tex. Crim. App. 1995).
20
App. 12
amendment, the people may not waive this
prohibition, either individually or collectively, any more than they may consent to be
imprisoned for conduct which does not constitute a crime.22
Thus, in Ieppert, we held that a defendant could raise
a claim for the first time on appeal that his convictions were barred by the Ex Post Facto Clause because the statute under which he was prosecuted had
not yet been enacted at the time of his allegedly
criminal conduct. Ieppert had been charged in multiple indictments with aggravated sexual assault of
a child under fourteen. When he committed the
offenses, the applicable statutes required proof of an
element the new statutes that he was prosecuted
under did not require – that the offenses be committed “with intent to arouse or gratify the sexual
desire of any person.”23 We held that prosecution for
conduct which was not illegal when committed was
not a forfeitable irregularity.24 In 2005, we reaffirmed
that the constitutional prohibition of ex post facto
laws is a Marin category-one, “absolute requirement”
that is not subject to forfeiture by the failure to
object.25
22
Id. at 220.
Id. (Baird, J., concurring).
24
Id. at 218.
25
Sanchez v. State, 120 S.W.3d 359, 365-66 (Tex. Crim.
App. 2003) (“[W]e have recognized three more absolute requirements since Marin: a constitutional requirement that a district
(Continued on following page)
23
App. 13
B. Application of a New Law to Revive a Previously Time-Barred Prosecution Violates the
Ex Post Facto Clause.
Statutes of limitations reflect “a legislative
judgment that, after a certain time, no quantum of
evidence is sufficient to convict.”26 That judgment
“typically rests, in large part, upon evidentiary concerns – for example, concern that the passage of time
has eroded memories or made witnesses or other
evidence unavailable.”27 Because statutes of limitations are measures of public policy “entirely subject to
the will of the Legislature,” they “may be changed or
repealed without violating constitutional prohibitions
against ex post facto laws in any case where a right to
acquittal has not been absolutely acquired by the
28
completion of the period of limitations.”
court must conduct its proceedings at the county seat, the constitutional prohibition of ex post facto laws, and certain constitutional restraints on the comments of a judge.”) (internal
quotation marks and footnotes omitted).
26
Stogner v. California, 539 U.S. 607, 615 (2003).
27
Id.
28
Vasquez v. State, 557 S.W.2d 779, 781 n.2 (Tex. Crim.
App. 1977) (op. on reh’g) (citing Hill v. State, 171 S.W.2d 880
(Tex. Crim. App. 1943)). The rationale for the rule was perhaps
best explained by Judge Learned Hand in Falter v. United
States, 23 F.2d 420 (2d Cir. 1928):
Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of
life. The question turns upon how much violence is
done to our instinctive feelings of justice and fair play.
For the state to assure a man that he has become safe
(Continued on following page)
App. 14
And Texas courts, like all federal circuits that
have ruled on the issue, have upheld the constitutionality of extending an unexpired criminal statute
of limitations.29 Thus, a statute of limitations may be
extended by the legislature, but a prosecution within
the new time period will be permitted only if the
limitations period had not already run before the law
was changed. In recent years, legislatures have been
particularly amenable to such extensions: “In the
early 1980s, spurred by a growing societal awareness
of and sensitivity to child abuse, both federal and
state governments began to enact legislation lengthening the limitations periods for prosecuting child
abuse cases.”30 Texas is no exception. As the court of
from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest.
But, while the chase is on, it does not shock us to have
it extended beyond the time first set, or, if it does, the
stake forgives it.
Id. at 425-26.
29
Archer v. State, 577 S.W.2d 244, 244 (Tex. Crim. App.
1979); United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir.
1998) ( joining eight other circuits in holding that “extending a
limitations period before the prosecution is barred does not
violate the Ex Post Facto Clause”).
30
Ryan D. Frei, Case Note, Does Time Eclipse Crime?
Stogner v. California and the Court’s Determination of the Ex
Post Facto Limitations on Retroactive Justice, 38 U. RICH. L.
REV. 1011, 1012, 1026 (2004) (“Around that time, legislatures
nationwide began to realize that child victims of sexual abuse
frequently refrain from reporting their abuse to authorities because they are easily manipulated by offenders in positions of
authority and trust, and because children have difficulty remembering the crime or facing the trauma it can cause. States
(Continued on following page)
App. 15
appeals pointed out in this case, the statute of limitations for certain sex offenses expanded from three
years to five years to ten years to the 1997 limitations
period of ten years after the victim’s 18th birthday.
Now there is no statute of limitations.31 But the Texas
Legislature did not and could not “resurrect” cases already barred with these newly expanded limitations
periods.32 Indeed, each amendment stated that the
that limited the time for prosecuting child sex abuse cases began
to significantly augment the time period for filing charges after
the abuse.”) (internal quotation marks and footnotes omitted).
31
TEX. CODE CRIM. PROC. art. 12.01 (“no limitation” for
“(A) murder and manslaughter; (B) sexual assault under Section
22.011(a)(2), Penal Code, or aggravated sexual assault under
Section 22.021(a)(1)(B), Penal Code; (C) sexual assault, if during
the investigation of the offense biological matter is collected and
subjected to forensic DNA testing and the testing results show
that the matter does not match the victim or any other person
whose identity is readily ascertained; (D) continuous sexual
abuse of young child or children under Section 21.02, Penal
Code; (E) indecency with a child under Section 21.11, Penal
Code . . . ”).
32
Both the State and appellant recognize that the issue
concerning the applicability of the statute of limitations deals
with a legislative enactment and the application of ex post facto
laws, not any application of judge-made or judicially abrogated
common law. See Rogers v. Tennesee [sic], 532 U.S. 451, 462
(2001) (holding that the retroactive application of a judicial
decision abolishing the common law “year and a day” rule was
not an ex post facto violation because that constitutional clause
applies to legislative acts – black letter law – not to judicial
decisionmaking); Johnson v. United States, 529 U.S. 694, 699
(2000) (“The heart of the Ex Post Facto Clause, U.S. Const., Art.
I, § 9, bars application of a law ‘that changes the punishment,
and inflicts a greater punishment, than the law annexed to the
crime, when committed. . . .’ To prevail on this sort of ex post
(Continued on following page)
App. 16
revised statute did not apply to an offense if prosecution of that offense had become barred by limitations
before the passage of the amended statute.33
facto claim, Johnson must show both that the law he challenges
operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever
the law provided when he acted.”); compare Ortiz v. State, 93
S.W.3d 79, 91 (Tex. Crim. App. 2002) (distinguishing between
the application of ex post facto laws enacted by the legislature
and the judicial decision-making error in including, in a jury
charge, language from a statute that had been amended after
the defendant had committed the offense). In Ortiz, a capitalmurder case alleging the underlying offense of retaliation for
harming or threatening to harm another for his “service” as a
public servant, the trial judge mistakenly included the phrase
“service or status” as a public servant in his jury charge. The
retaliation statute had been amended between the offense date
and the trial to include a threat to harm another because of his
“status” as well as his “service” as a public servant. Id. at 91.
This error did not constitute an ex post facto application of the
retaliation statute; the charge was simply “erroneous because it
relied on the wrong version of the statute.” Id. But it did not
cause the defendant egregious harm because “[t]here is little
difference between a prospective witness’ status and his service.” Id. at 92. The situation in Ortiz would be an ex post facto
violation under Johnson if the retaliation statute did not include
protection of “a public servant” at the time Ortiz committed the
murder, but the State alleged that the victim was “a public
servant.”
If, at the time of the offense, the statute did not criminalize
retaliation against “a public servant,” then any application of
that new statute to conduct that had occurred before its enactment would be an ex post facto violation of the law.
33
Accord, Act of June 3, 2009, 81st Leg., R.S., ch. 1227,
§ 42, 2007 Tex. Gen. Laws 3930 (“(a) The change in law made by
this Act applies only to an offense committed on or after the
effective date of this Act [September 1, 2009]. For purposes of
(Continued on following page)
App. 17
In Stogner v. California,34 the Supreme Court
clarified the application of the Ex Post Facto Clause
to a criminal statute of limitations. The Court held
that a California statute authorizing the prosecution
of a “seventy-eight-year-old man for crimes that had
been time-barred from prosecution for over twentytwo years was an unconstitutional ex post facto law.”35
Stogner had been indicted in 1998 for sex offenses
allegedly committed between 1955 and 1973 in California.36 At that time, a three-year limitations period
applied to sex offenses.37 But in 1993, California
passed a new statute allowing prosecution for sexrelated child abuse after the limitations period had
expired if the prosecution was begun within one year
of the victim’s report to police.38 The Supreme Court
agreed with Stogner that this facially retroactive law
that revived a previously time-barred offense violated
the Ex Post Facto Clause.39 It noted that the statute
was an unfair extension of a limitations period after
the State had “assured a man that he has become
this section, an offense is committed before the effective date
of this Act if any element of the offense occurs before that date.
(b) An offense committed before the effective date of this Act is
governed by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.”).
34
539 U.S. 607 (2003).
35
Frei, supra note 30, at 1013.
36
Stogner, 539 U.S. at 609.
37
Id. at 610.
38
Id. at 609.
39
Id. at 610.
App. 18
safe from its pursuit,”40 and that it reflected a government refusing both “to play by its own rules” and
to give “fair warning” to a man to preserve exculpatory evidence.41
The Supreme Court pointed to history and noted
that “numerous legislators, courts, and commentators
have long believed it well settled that the Ex Post
Facto Clause forbids resurrection of a time-barred
prosecution.”42 The Court cited an early Texas decision, State v. Sneed,43 in which the Texas Supreme
Court stated,
In this case the bar of the statute of limitations of one year was completed before the
code went into operation, by which the period
of limitation of prosecutions in such misdemeanors was extended to two years. The
state having neglected to prosecute within
the time prescribed for its own action, lost
the right to prosecute the suit. To give an act
of the legislature, passed after such loss, the
effect of reviving the right of action in the
state, would give it an operation ex post
facto, which we cannot suppose the legislature intended.44
40
41
42
43
44
Id. at 611 (citation and internal quotation marks omitted).
Id. (citations and internal quotation marks omitted).
Id. at 616.
State v. Sneed, 25 Tex. 66 (1860).
Id. at 67.
App. 19
Thus, as early as 1860, Texas courts held that the
application of an otherwise valid law extending the
statute of limitations to an offense that was already
time-barred violated the Ex Post Facto Clause. The
Stogner Court concluded that “where courts have
upheld extensions of unexpired statutes of limitations
. . . they have consistently distinguished situations
where limitations periods have expired.”45
In People v. Shedd,46 a Colorado case similar to
the present one, the defendant was charged with
sexual assault of a child, alleged to have occurred
between September 1 and December 31, 1977.47 At
that time, the statute of limitations was three years,
but in 1982, the legislature increased the limitations
period for sexual offenses to ten years. However,
45
Stogner, 539 U.S. at 618. Texas is no exception. See
Archer v. State, 577 S.W.2d 244, 244 (Tex. Crim. App. 1979)
(“complete defense” accrued under statute of limitations cannot
“be taken away by a subsequent repeal or amendment”; however, statute extending limitations period “applies to all offenses
not barred at the time of the passage of the act, so that a
prosecution may be commenced at any time within the newly
established period, although the old period of limitations has
then expired”); Rose v. State, 716 S.W.2d 162, 165 (Tex. App –
Dallas 1986, pet. ref ’d) (“Where a complete defense has accrued
under a statute of limitations, it cannot be taken away by
subsequent repeal or amendment; however, a statute extending
the period of limitations applies to all offenses not barred at the
time of the passage of the act, so that the prosecution may be
commenced at any time within the newly established period,
although the old period of limitation has expired.”).
46
702 P.2d 267 (Colo. 1985) (en banc) (per curiam).
47
Id. at 268.
App. 20
because the statute of limitations against the defendant had already expired, at the latest, on December
31, 1980, “the new ten-year statute of limitations did
not revive the court’s jurisdiction to hear the case.”48
As the Colorado Supreme Court explained,
A case barred from prosecution by a statute
of limitations cannot be revived by subsequent legislation that acts to extend the limitations period. Retroactive application of a
statute of limitations to revive a previously
barred prosecution violates the fundamental
constitutional prohibition against ex post
facto legislation.49
The Shedd decision was cited favorably by the Su50
preme Court in Stogner, and it is precisely analogous to the present case.
48
Id.
Id. (citations omitted); see also Commonwealth v.
Rocheleau, 533 N.E.2d 1333, 1334 (Mass. 1989); United States
v. Fraidin, 63 F.Supp. 271, 276 (D.C. Md. 1945) (“where a
statute extends a period of limitations or provides for the tolling
thereof, it applies to offenses not barred at the time of the
statute’s passage; but such a statute cannot operate to revive
offenses which were barred at the time of its enactment since it
would in such case be ex post facto”; prosecution barred by
limitations).
50
See Stogner, 539 U.S. at 617, 618.
49
App. 21
III.
A. Applying the 1997 Version of the Statute
of Limitations to Revive a Previously TimeBarred Prosecution Violates the Ex Post
Facto Clause.
1. Appellant’s ex post facto claim is valid.
Although the 1997 statute of limitations amendment is not an ex post facto law on its face, as was the
one at issue in Stogner, its application to a situation
in which the statue [sic] of limitations had already run
before its enactment violates that constitutional provision. As in Stogner, application of the 1997 version
falls into the Calder v. Bull second category as applied to appellant’s prosecution.51 The properly extended ten-year statute of limitations had expired in
1993, and, from that day forward, prosecution of all
twelve counts was forever and absolutely barred. No
new statute could ever constitutionally resurrect them.52
51
See Stogner, 539 U.S. at 612-13 (stating that the retroactive California law fell into the second Calder v. Bull ex post
facto category – any “law that aggravates a crime, or makes it
greater than it was, when committed” – because, after the
original statute of limitations law had expired, Stogner was not
“liable to any punishment”; “California’s new statute therefore
‘aggravated’ Stogner’s alleged crime, or made it ‘greater than it
was, when committed,’ in the sense that, and to the extent that,
it ‘inflicted punishment’ for past criminal conduct that (when the
new law was enacted) did not trigger any such liability.”) (some
internal quotation marks omitted).
52
See Stogner, 539 U.S. at 616-19; State v. Sneed, 25 Tex.
66, 67 (1860).
App. 22
The SPA does not now argue otherwise. Instead, she
claims that appellant forfeited this absolute limitations bar by failing to complain in the trial court.
2. Appellant’s ex post facto issue was not
forfeited.
The SPA argues that appellant failed to preserve
his complaint for appeal because his issue was not a
true ex post facto issue that could be raised for the
first time on appeal under Ieppert and that this is
true because statutes of limitations are not “structural.”53 That argument mixes apples with oranges.
“Structural rights” are those rights to which the
constitutional harmless-error rule does not apply: if
the defendant shows that the right was violated,
appellate courts must reverse the conviction without
any analysis of whether that error was harmful.54
“Categorical rights” are those “absolute requirements
and prohibitions, like rights which are waivable only,
[that] are to be observed even without partisan request. But unlike waivable rights, they can’t lawfully
be avoided even with partisan consent.”55 In Ieppert,
53
State’s Brief at 7 (citing Johnson v. United States, 520
U.S. 461, 468-69 (1997) (listing those rights deemed structural
by the Supreme Court)).
54
See Johnson, 520 U.S. at 468-69.
55
Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App.
1993), overruled on other grounds by Cain v. State, 947 S.W.2d
262 (Tex. Crim. App. 1997). In a post-Marin case, however, we
have noted that a party may be estopped from relying upon a
(Continued on following page)
App. 23
we explicitly held that a defendant could raise the
claim of a statute of limitations bar for the first time
on appeal because it was a “categorical prohibition”
which may not be waived or forfeited by the failure to
object.56 As we stated, this bar is not only for the
benefit of the individual defendant, it is intended to
keep sacred the government’s promise to its citizens.57
The SPA has another, more subtle, argument:
This is not an ex post facto claim under Stogner, and
therefore it could not be raised for the first time on
appeal, because Stogner involved a law that overtly
“permit[ted] resurrection of otherwise time-barred
criminal prosecutions,” and this case involves no such
overtly retroactive law.58 That is, nothing in the 1997
statute expressly permitted the resurrection of a
previously barred prosecution; indeed, the statute
itself states just the opposite. This distinction is irrelevant because the ex post facto result is the same –
the retroactive application here “revived” a previously
barred prosecution.59 And, in Carmell, the Supreme
“category one” absolute requirement. Sanchez v. State, 120
S.W.3d 359, 365 (Tex. Crim. App. 2003).
56
Ieppert v. State, 908 S.W.2d 217, 220 (Tex. Crim. App.
1995); see also Saldano v. State, 70 S.W.3d 873, 888-89 (Tex. Crim.
App. 2002) (citing Ieppert for the proposition that one Marin
nonforfeitable “absolute requirement” is the constitutional prohibition of ex post facto laws).
57
Id.
58
SPA’s Brief at 5-6 (quoting Stogner, 539 U.S. at 609).
59
See Sneed, 25 Tex. at 67; Shedd, 702 P.2d at 268; Fraidin,
63 F.Supp. at 276.
App. 24
Court held that the retroactive application of statutes
that are not expressly and facially retroactive nonetheless violates the Ex Post Facto Clause.60
3. Proctor v. State does not apply.
As the SPA notes, in Proctor v. State,61 we held
that a defendant will forfeit a statute-of-limitations
defense if he does not assert it at or before the guilt
stage of trial.62 We declared that “a limitations defense” is a Marin third-category rule that must be
implemented only upon request.63 But Proctor governs
statute-of-limitations defenses that are based on facts
(challenging a pleading that includes a “tolling paragraph,” “explanatory averments,” or even “innuendo
allegations,” that suffice to show that the charged
offense is not, at least on the face of the indictment,
barred by limitations), not pure law (challenging an
indictment that shows on its face that prosecution is
60
Carmell v. Texas, 529 U.S. 513, 530-31 (2000).
967 S.W.2d 840 (Tex. Crim. App. 1998).
62
Id. at 844.
63
Id. (“It seems to us that a defendant, having been given
the statute of limitations as a defense, ought to have the burden
of asserting that defense or losing it, just as he would any other
defense. . . . We also conclude that placing limitations in the
second Marin category is equally inappropriate. However important the statute of limitations might be to a defendant in a
given case, the statute can hardly be deemed ‘fundamental to
the proper functioning of our adjudicatory system.’ Indeed, at
common law there was no limitation as to the time within which
offenses could be prosecuted.”).
61
App. 25
absolutely barred by the statute of limitations). The
pleading that gives rise to a limitations factual defense is reparable. The pleading that gives rise to a
statute-of-limitations bar is not. The first is forfeited
unless raised before or during the trial and cannot be
raised in a pretrial writ. The second – a true ex post
facto violation – is not forfeitable under Ieppert. We
have stated, in a post-Proctor case, that a limitations
bar may be raised in a pretrial motion to quash or
dismiss, a pretrial writ, at trial, on direct appeal, or
in a collateral proceeding.64 “[I]f the pleading, on its
face, shows that the offense charged is barred by
limitations, then it is appropriate that habeas corpus
relief be granted.”65
The distinction between the factual statute of
limitations “defense” and the legal bar was explained
64
Ex parte Smith, 178 S.W.3d 797, 801-02 (Tex. Crim. App.
2005) (“A pretrial writ of habeas corpus may be used, however,
to challenge the jurisdiction of the court if the face of the
indictment shows that any prosecution is barred by the statute
of limitations. This is because the defect is incurable and irreparable. Limitations is an absolute bar to prosecution. There
is no point in wasting scarce judicial and societal resources
or putting the defendant to great expense, inconvenience, and
anxiety if the ultimate result is never in question.”) (footnotes
omitted).
65
Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim. App.
2001); see also Tita v. State, 267 S.W.3d 33, 38 (Tex. Crim. App.
2008) (distinguishing between a statute of limitations defense
that relies upon factual proof under Proctor and an irreparable
bar under the applicable statute of limitations).
App. 26
by the Kansas Supreme Court in State v. Garcia.66 In
that case, the defendant raised, for the first time on
appeal, a Stogner-based claim that the retroactive
application of a new statute to revive his time-barred
prosecution for rape violated the Ex Post Facto
67
Clause. Rejecting the State’s claim that the defendant waived any claim related to the statute of limitations by failing to raise it in the trial court, the
Kansas Court stated that the
State’s arguments muddy the issue. By the
time the rape charge was filed against Garcia
in late January 2004, the statute of limitations
already had been extended by the legislature
to 1 year after his August 2003 DNA testing –
to August 2004. Accordingly, the proper question is not whether he was being prosecuted
outside of the statute of limitations. Under
the amended statute, he clearly fell within
the limitations period; therefore, the statute
of limitations defense was not available to
him, and case law concerning waiver of a
limitations period as an affirmative defense
is inapplicable. Rather, the proper question
is whether the amended statute lengthening
the limitations period was applied contrary
to a constitutional provision, i.e., the Ex Post
Facto Clause, and we have held that it was.68
66
169 P.3d 1069 (Kan. 2007).
Id. at 1075.
68
Id. at 1076 (emphasis supplied). The Garcia court concluded, “Had the constitutional issue been previously raised,
(Continued on following page)
67
App. 27
Because the prosecution of Garcia violated the Ex
Post Facto Clause, his conviction was reversed. The
same is required in this case. Proctor is inapplicable
here. Stogner, Sneed, and Ieppert control this case and
others like it. For these reasons, we reverse the judgment of the court of appeals and remand this case to
the trial court to enter an order dismissing the indictment.
Delivered: June 15, 2011
Publish
Garcia would likely not have been prosecuted for the rape
charge, which resulted in a conviction and attendant sentence of
408 months’ imprisonment consecutive to his life sentence for
felony murder. Therefore, we conclude that at a minimum,
consideration of the issue is necessary to serve the ends of
justice and to prevent a denial of fundamental rights. In light of
our holding that application of the amendment to revive Garcia’s
previously time-barred prosecution for rape violated the Ex Post
Facto Clause, the conviction is reversed.” Id.
App. 28
KELLER, P.J., filed a dissenting opinion in
which KEASLER, and HERVEY, JJ., joined.
The Court appears to misunderstand the nature
of the ex post facto prohibition. Because the legislature has not passed an ex post facto law, there
has been no ex post facto violation in this case.
And because appellant failed to raise his statuteof-limitations defense at trial, he has forfeited his
complaint.
A. Only the Legislature Can Commit an Ex
Post Facto Violation
The United States Constitution provides: “No
state shall . . . pass any . . . ex post facto Law.”1 The
Texas Constitution provides: “No . . . ex post facto law
. . . shall be made.”2 Thus, something can be “ex post
facto” only if it is a “law,” and the language in the
United States Constitution specifies that a “law” for
these purposes is something that is “passed.”
In Ortiz v. State, we explained: “In both provisions, the language is directed at the legislature, not
the courts.”3 And though the Court now relies upon
4
Ieppert v. State, we explained in Ortiz that “[i]n
Ieppert v. State, we did not appear to appreciate the
1
2
3
4
U.S. CONST. art. I, § 10, cl. 1.
TEX. CONST. art. I, § 16.
93 S.W.3d 79, 91 (Tex. Crim. App. 2002).
908 S.W.2d 217 (Tex. Crim. App. 1995).
App. 29
distinction.”5 Under Supreme Court precedent, we explained, “the ex post facto clause does not apply to the
judiciary.”6 Specifically, “an ex post facto problem does
not arise from a trial court’s erroneous retroactive
application of a statute, but only if the statute itself
7
has retroactive effect.” Although the retroactive application of a statute by the judiciary may implicate
due process, “due process does not incorporate all of
the ex post facto clause’s strictures.”8 In finding that
“the protections are not coextensive,” the Supreme
Court has “pointed to ‘important institutional and
contextual differences between legislating, on the
one hand, and common law decisionmaking, on the
5
Ortiz, 93 S.W.3d at 91. In any event, Ieppert addressed
only whether ex post facto claims were forfeitable; it did not
address whether the defendant’s statute-of-limitations claim, if
true, would establish an ex post facto violation. See Ieppert, 908
S.W.2d at 218 (“The Court of Appeals did not reach the merits
of” the ex post facto claim, “holding instead that appellant
forfeited the right to complain of it on appeal because he did not
first raise it in the trial court.”), 220 (holding that “ex post facto
prohibitions do not merely confer upon the people a waivable
or forfeitable right not to have their conduct penalized retroactively” and remanding for proceedings consistent with the
opinion).
6
Ortiz, 93 S.W.3d at 91 (citing Rogers v. Tennessee, 532
U.S. 451 (2001)).
7
Id. (citing Johnson v. United States, 529 U.S. 694 (2000)
and summarizing its holding in a following parenthetical as:
“because new statute did not apply retroactively, no ex post facto
question arises; only question is whether the old statute authorized the trial court’s action”).
8
Id. (citing Rogers, 532 U.S. at 457-62).
App. 30
other.’ ”9 And in a statute-of-limitations context, we
have specifically recognized that the Ex Post Facto
Clause “is a limitation upon the powers of state
legislatures and not state courts.”10 Contrary to the
Court’s contention that this is a “subtle” argument,11
the distinction between legislative action and judicial
decision-making is crucial.
The Court’s attempt to distinguish Ortiz is internally inconsistent. The Court first acknowledges that
the insertion of the words “or status” in the jury
charge was mere jury charge error, even though the
words “or status” were in a later version of the statute but not in the version of the statute in effect at
the time the offense was committed.12 But the Court
says that it would be an ex post facto violation if
instead of “or status,” the extraneous words were “a
public servant.” The Court’s interpretation Ortiz is
simply at odds with the express language and holding
in that case.
The Court claims that a jury charge erroneously
containing the words “a public servant” would be “an ex
post facto violation under Johnson.”13 But the Court’s
own parenthetical quote from Johnson effectively
9
10
Id. (quoting Rogers, 532 U.S. at 460).
Proctor v. State, 967 S.W.2d 840, 845 (Tex. Crim. App.
1998).
11
12
13
See Court’s op. at 18.
Court’s op. at 12 n.32.
Id.
App. 31
refutes the Court’s contention: “To prevail on this sort
of ex post facto claim, Johnson must show . . . that the
law he challenges operates retroactively (that it applies to conduct completed before its enactment).14
The Court contends that Carmell v. Texas15 found
the “application” of a new law to run afoul of the ex
post facto prohibition “even though the law itself was
not facially retroactive.”16 The Court cites to pages
530-31 in Carmell as support, but I do not see anything in those pages that stands for the proposition
attributed by the Court.17 And I am unable to find any
passage in Carmell that says this.18
The law at issue in Carmell changed the quantum of evidence necessary to support a conviction
for certain sexual offenses – permitting conviction on
uncorroborated testimony in some situations in which
corroboration had previously been required.19 The
20
statute contained no savings provision, so it was
applicable to any case that met its terms, which included subsequent trials regardless of whether the
14
See id. (quoting Johnson, 529 U.S. at 699) (emphasis
added).
15
529 U.S. 513 (2000).
16
Court’s op. at 7; see also Court’s op. at 19.
17
See Carmell, 529 U.S. at 530-31.
18
See id., passim.
19
See Carmell, 529 U.S. at 516-18 (addressing changes to
TEX. CODE CRIM. PROC. art. 38.07).
20
See Acts 1993, 73rd Leg., ch. 200, § 1 & passim; Acts
1993, 73rd Leg., ch. 900, § 12.01 & passim.
App. 32
offenses were committed before or after the statutory
change.21
The Court also contends that Scott v. State22
involved a holding that an ex post facto violation
occurs when a statute is not “facially retroactive” but
is applied retroactively. The Court is mistaken. Scott
held that the enhancement statute at issue was ret23
roactive. Although the statute contained the “standard” savings clause applicable to enhancements, the
standard savings clause was not sufficient for ex post
facto purposes because the enhancement was not a
standard enhancement.24 Ordinarily, a law creating
an enhancement by prior conviction does not violate
the Ex Post Facto Clause so long as the law was in
place before the commission of the new offense for
which the prior conviction is being used to enhance,
even though the prior conviction may predate the
21
See Carmell, 529 U.S. at 530 (“Under the law in effect at
the time the acts were committed, the prosecution’s case was
legally insufficient and petitioner was entitled to a judgment of
acquittal, unless the State could produce both the victim’s testimony and corroborative evidence. The amended law, however,
changed the quantum of evidence necessary to sustain a conviction; under the new law, petitioner could be (and was) convicted
on the victim’s testimony alone, without any corroborating evidence.”).
22
55 S.W.3d 593 (Tex. Crim. App. 2001).
23
Id. at 596-98; specifically see id. at 596 (“We conclude that
the Legislature intended to permit the use for enhancement of
deferred adjudications that were assessed before the enactment
of the enhancement provision.”).
24
Id. at 596-98.
App. 33
enhancement provision.25 No ex post facto violation
occurs in that situation because the enhancement
“punish[es] the new offense rather than the prior conviction.”26 But the enhancement provision at issue in
Scott modified what was previously an explicit assurance by statute that a defendant placed on deferred
adjudication would not be subject to “disqualifications
or disabilities” if he successfully completed his deferred adjudication.27 The legislature could modify
that statutory assurance for people who would be
placed on deferred adjudication in the future, but it
could not modify that assurance for people who had
been placed on deferred adjudication in the past.28 To
prevent the enhancement statute from having unconstitutionally retroactive reach, then, the legislature
should have drafted a special savings clause for the
special situation with which it was confronted, but it
did not do so.
The Court claims that the present case is analogous to Scott, but it is not. In Scott, it was the enhancement provision itself that was retroactive; the
trial court made no mistake in construing the meaning of that provision. As will be discussed later, the
statute at issue in the present case contained a savings provision tailored for the statute-of-limitations
25
26
27
28
Id. at 596.
Id.
Id. at 596-98.
See id.
App. 34
context that prevented the statute from having unconstitutionally retroactive reach.
The Court suggests that its holding is supported
by six statute-of-limitations cases that found ex post
29
facto violations. First, the Court cites Stogner v.
California30 for the proposition that the Ex Post Facto
Clause forbids the resurrection of a time-barred
31
prosecution. In that case, the California statute expressly authorized the resurrection of a time-barred
prosecution.32 The Supreme Court’s statement that
the “Ex Post Facto Clause forbids resurrection of
a time-barred prosecution” introduced a discussion
about the Reconstruction Congress’s rejection of a
29
The Court does not directly suggest that its holding is
supported Judge Learned Hand’s opinion in Falter v. United
States, 23 F.2d 420 (2d Cir. 1928), but it cites Falter for the
“rationale” for the rule that a legislature cannot retroactively
extend a limitations period for an offense that is already barred
by limitations. See Court’s op. at 11 n.28. But Judge Learned
hand was addressing a statutory amendment that, by its terms,
had retroactive reach. Falter, 23 F.2d at 425 (“In November,
1921, the proviso was added by which the period was extended
to six years in the case of ‘offenses involving the defrauding or
attempts to defraud the United States or any agency thereof,
whether by conspiracy or not.’ 18 USCA § 582. The application
of the proviso to the case at bar being clear from its last sentence,
the defendants argue that the amendment is ex post facto
legislation. Perhaps they would be right, if the earlier statute
had once run in their favor.”) (emphasis added).
30
539 U.S. 607 (2003).
31
Court’s op. at 13-15.
32
539 U.S. at 609.
App. 35
bill that would have done so.33 In the next paragraph,
the Supreme Court referred to State Supreme Courts
as holding that “laws reviving time-barred prosecutions are ex post facto.”34 In its concluding paragraph,
the Supreme Court stated: “We conclude that a law
enacted after expiration of a previously applicable
limitations period violates the Ex Post Facto Clause
when it is applied to revive a previously time-barred
prosecution.”35 Though the Supreme Court used the
word “applied” in this sentence, it was clearly talking
about an Ex Post Facto violation being caused by the
“law” itself, not by an (erroneous) application of the
law.
The Court also relies upon State v. Sneed,36 an
early Supreme Court of Texas decision.37 The Sneed
opinion is brief, and the Court has quoted the opinion
in its entirety. For the convenience of the reader, I set
it out below:
In this case the bar of the statute of limitations of one year was completed before the
code went into operation, by which the period
of limitation of prosecutions in such misdemeanors was extended to two years. The
state having neglected to prosecute within
the time prescribed for its own action, lost
33
34
35
36
37
Id. at 616.
Id. at 617 (emphasis added).
Id. at 632-33.
25 Tex. 66 (1860).
Court’s op. at 14-15.
App. 36
the right to prosecute the suit. To give an act
of the legislature, passed after such loss, the
effect of reviving the right of action in the
state, would give it an operation ex post
facto, which we cannot suppose the legislature intended.38
The Sneed court may have been suggesting that it
was construing the new statute narrowly to avoid a
constitutional violation, a common rule of construction grounded on the presumption that the legislature
39
intended the law to comply with the constitution.
But Sneed did not hold that an ex post facto violation
could arise from a trial court’s erroneous application
of a statute. Even if it did, the Ortiz decision would
control because Ortiz is far more recent, is from this
Court, and contains a more extensive and specific
discussion regarding the issue at hand.
Third, the Court relies upon People v. Shedd,40 a
Colorado Supreme Court case.41 In that case, the defendant raised a statute-of-limitations claim at trial,
and the trial court dismissed the case on that basis.42
Affirming that decision, the Colorado Supreme Court
stated: “Retroactive application of a statute of limitations to revive a previously barred prosecution
38
Sneed, 25 Tex. at 67.
See Lebo v. State, 90 S.W.3d 324, 329-30, 330 n.22 (Tex.
Crim. App. 2002).
40
702 P.2d 267 (Colo. 1985).
41
Court’s op. at 15.
42
Shedd, 702 P.2d at 268.
39
App. 37
violates the fundamental constitutional prohibition
against ex post facto legislation.”43 Significantly, the
court did not say that the defendant suffered an ex
post facto violation, nor did the court even hold that
the statute at issue in that case violated the ex post
44
facto clause. It did not have to. Because the defendant timely raised a limitations claim, it was either
true that the statute did not retroactively extend
limitations for a time-barred prosecution – perhaps
by being narrowly construed to avoid an ex post facto
violation – or it did operate in such a retroactive
manner, with such extension being invalid under the
prohibition against ex post facto laws. What is significant is that the Colorado court recognized that the
ex post facto prohibition was directed against “legislation.”45 But even if the Colorado decision did stand for
43
Id.
See id.
45
Analysis of the Colorado statute may be complicated by
some unusual aspects of the case. Originally, sex offenses in
Colorado had a limitations period of three years. See People v.
Holland, 708 P.2d 119, 119 (Colo. 1985). For sex offenses in
which the victim was a child under fifteen years of age, the 1982
amendment provided: “The period of time during which a person
may be prosecuted shall be extended for an additional seven
years. . . .” See id. at 119 n.2. No savings provision was enacted
at the time the amendment was passed, but a provision purporting to express the legislature’s intent was enacted in 1985. See
id. at 120. The intent provision was framed in such a way as to
comply with the rule later expressed in Stogner: “The intent of
the general assembly in enacting section 16-5-401(6) and (7)
in 1982 was to create a ten-year statute of limitations as to
(Continued on following page)
44
App. 38
the proposition cited for it by the Court, it preceded
the United States Supreme Court decisions in Rogers
and Johnson upon which our Ortiz decision relied.
In a footnote, the Court cites Commonwealth v.
46
Rocheleau, a Massachusetts Supreme Court decision, and United States v. Fraidin,47 a federal district court opinion.48 The Rocheleau decision held that
indictments were barred by limitations because limitations for a time-barred prosecution cannot be
legislatively extended.49 However, the words “ex post
facto” appear nowhere in the Massachusetts court’s
opinion.50 And the Court’s own quotation from the
Fraidin opinion is at odds with the Court’s contention: The federal district court said, “[B]ut such a
statute cannot operate to revive offenses which were
barred at the time of its enactment since it would in
such case be ex post facto.”51 Thus, Fraidin recognized
that it was the operation of the statute that mattered
under the ex post facto clause. In any event,
Rocheleau and Fraidin were both decided before the
United States Supreme Court decisions in Rogers and
Johnson upon which our Ortiz decision relied.
offenses specified in said subsections committed on or after July
1, 1979.” See Holland, 708 P.2d at 120.
46
404 Mass. 129, 533 N.E.2d 1333 (1989).
47
63 F. Supp. 271 (D.C. Md. 1945).
48
Court’s op. at 16 n.49.
49
Rocheleau, 404 Mass. at 130-31, 533 N.E.2d at 1334.
50
See id., passim.
51
Fraidin, 63 F. Supp. at 276 (emphasis added).
App. 39
Finally, the Court relies upon State v. Garcia,52 a
Kansas Supreme Court case.53 The Court contends
that the case stands for the proposition that a defendant cannot waive an ex post facto claim in the
limitations context, but the Court overlooks the fact
that the Kansas court drew a sharp distinction between a prosecution that was outside the limitations
period and a case in which the period of limitations
was retroactively extended by statute:
The State’s arguments muddy the issue. By
the time the rape charge was filed against
Garcia in late January 2004, the statute of
limitations already had been extended by the
legislature to 1 year after his August 2003
DNA testing – to August 2004. Accordingly,
the proper question is not whether he was
being prosecuted outside of the statute of
limitations. Under the amended statute, he
clearly fell within the limitations period;
therefore, the statute of limitations defense
was not available to him, and case law concerning waiver of a limitations period as an
affirmative defense is inapplicable. Rather,
the proper question is whether the amended
statute lengthening the limitations period
was applied contrary to a constitutional provision, i.e., the Ex Post Facto Clause, and we
have held that it was.54
52
53
54
169 P.2d 1069 (Kan. 2007).
Court’s op. at 17.
Id. at 1076 (emphasis added).
App. 40
As the above passage shows, the defendant in the
Kansas case had no statute of limitations defense
because the new statute extended the period of limitations. The Kansas court found that very fact to be
the reason the prosecution’s waiver arguments were
unavailing.
B. The Legislature Did Not Commit an Ex Post
Facto Violation
The 1997 amendments to the limitations statute
contained the following savings provision that prevented the statute from operating contrary to the
dictates of Stogner:
The change in the law made by this Act does
not apply to an offense if the prosecution of
the offense became barred by limitation before the effective date of this Act. The prosecution of that offense remains barred as
though this Act had not taken effect.55
So the savings provision prevented the 1997 amendments from applying to appellant’s sex offenses that
became barred in 1993. The parties and the trial
court were simply mistaken in believing that the
1997 statute applied. The legislature did not pass an
ex post facto law.
55
Acts 1997, 75th Leg., Ch. 740, § 3. The 2007 amendments
that again changed the period of limitations for sex offenses
contained an almost identically worded savings provision. See
Acts 2007, 80th Leg., ch. 593, § 4.01(c).
App. 41
This case is no different than a case in which the
statute of limitations has simply not been complied
with. It is no different from a case in which the statute of limitations is five years, and has always been
five years, but the charging instrument was not
returned until after seven years (with no tolling
circumstances present). Under the applicable statutes, appellant’s case was time-barred, and all of the
trial participants were simply mistaken in believing
otherwise. It does not matter how the statute of
limitations was later amended, if those later amendments do not apply to appellant. Those inapplicable
amendments cannot magically convert a plain vanilla
statute-of-limitations claim into an ex post facto
violation.
C. Limitations Defense Was Forfeited
The question now is whether appellant can raise
his plain-vanilla limitations claim for the first time
on appeal. In Proctor v. State, we held that statute of
limitations was a defense that a defendant forfeited if
he failed to raise it before or at trial.56 The Court
contends that Proctor is distinguishable and governs
a statute-of-limitations defense only if it involves
facts rather than “pure law.”57 The Court’s contention
is at odds with the reasons given in Proctor for holding the defense to be forfeitable. Several reasons we
56
57
967 S.W.2d at 844.
Court’s op. at 16.
App. 42
gave for treating a statute-of-limitations defense
as forfeitable were: (1) “limitations has little to do
with the truth-finding function of the criminal justice
system,” (2) “a defendant might make a calculated
decision to waive the defense when the statute is
about to run in order to gain time for plea bargaining,” and (3) “a defendant might want to forego the
limitations defense in order to vindicate his good
name in the face of a serious and publicly known
charge.”58 All of these reasons apply equally to situations in which an offense is barred by limitations as a
matter of law.
Relying upon cases that say a (non-reparable)
limitations bar may be raised in pretrial habeas
proceedings,59 the Court claims that this somehow
means that a (non-reparable) limitations bar may
be raised for the first time on appeal. But there is
no necessary connection between the two concepts.
Indeed, the facial constitutionality of a statute
that defines the offense may be challenged in a
58
Id. I add to this list the possibility that foregoing a limitations defense could be part of a plea agreement involving
multiple charges. For example, a defendant accused of capital
murder might forego limitations defenses for lesser offenses in
exchange for the State’s waiver of the death penalty.
59
Ex parte Smith, 178 S.W.3d 797, 801-02 (Tex. Crim. App.
2005); Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim. App.
2001).
App. 43
pretrial habeas proceeding,60 but such a claim cannot
be raised for the first time on appeal.61 The Court
claims that Tita v. State distinguished between factual proof under Proctor and an irreparable bar, but
Proctor was distinguished on the basis that the Code
of Criminal Procedure contains a requirement that an
indictment reflect on its face that the prosecution is
not barred by limitations.62 Unfortunately for appellant, the Code of Criminal Procedure also provides
that a defendant forfeits error if he fails to object
before trial to a defect of form or substance in the
63
indictment.
The Court cites Ex parte Smith for the proposition that a limitations bar may be raised “in a pretrial motion to quash or dismiss, a pretrial writ, at
trial, on direct appeal, or in a collateral proceeding.”64
Contrary to the Court’s contention, Smith did not say
that limitations may be raised for the first time on
60
Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010)
(“Pretrial habeas can be used to bring a facial challenge to the
constitutionality of the statute that defines the offense.”).
61
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009).
62
Tita v. State, 267 S.W.3d 33, 38 (Tex. Crim. App. 2008)
(citing TEX. CODE CRIM. PROC. art. 21.02(6) (“The time mentioned
must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is
barred by limitation.”)).
63
TEX. CODE CRIM. PROC. art. 1.14(b); Studer v. State, 799
S.W.2d 263 (Tex. Crim. App. 1990).
64
Court’s op. at 16-17 (citing Smith, 178 S.W.3d at 801-02).
App. 44
appeal,65 and the “collateral proceeding” to which
Smith apparently referred was a pretrial habeas request for bail.66 And Smith did not necessarily approve the holding in the bail case. The Court simply
stated that this past decision found the pleading to be
“so fundamentally defective that the trial court does
not have jurisdiction and habeas relief should be
granted,” but the Court then supplied, in a footnote, a
67
“but see” cite to Proctor. Moreover, the bail case, Ex
parte Dickerson, was a 1977 decision that predated
both Proctor and the legislative amendments that
imposed the pretrial objection requirement for challenging a defect in the indictment.
Further, in Posey v. State, we held that the
failure to request a defense means that the defense is
not “law applicable to the case” and thus cannot be a
basis for a jury-charge complaint.68 I believe a substantive defense could be raised as a sufficiency-ofthe evidence point without a prior objection if the
evidence proves the defense as a matter of law.69 But
statute of limitations is not a substantive defense. It
is contained in the Code of Criminal Procedure, not
the Penal Code, and it does not negate criminal
65
Smith, 178 S.W.3d at passim.
See id. at 802 (citing Ex parte Dickerson, 549 S.W.2d 202
(Tex. Crim. App. 1977)); See Dickerson, supra.
67
Smith, 178 S.W.3d at 802 & n.19.
68
966 S.W.2d 57 (Tex. Crim. App. 1998).
69
See Wright v. State, 981 S.W.2d 197, 203-04 (Tex. Crim.
App. 1998) (Keller, J., dissenting).
66
App. 45
liability at the time the conduct was committed. Instead, statute of limitations is a procedural defense,
an “act of grace” by the legislature.70 Thus, it can be
forfeited in its entirety, and it was forfeited in this
71
case.
I respectfully dissent.
Filed: June 15, 2011
Publish
70
Proctor, 967 S.W.2d at 843.
That does not mean, however, that appellant is without
any possible remedy. If appellant did not knowingly forgo the
defense and his attorney had no valid strategy for failing to raise
it, then appellant may well have a valid claim of ineffective assistance of counsel.
71
App. 46
WILLIAM RAY PHILLIPS, Appellant v. THE
STATE OF TEXAS, Appellee
No. 10-07-00346-CR
COURT OF APPEALS OF TEXAS,
TENTH DISTRICT, WACO
2009 Tex. App. LEXIS 6864
August 26, 2009, Opinion Delivered
August 26, 2009, Opinion Filed
COUNSEL: For Appellant/Relator: Charles W.
McDonald, MCDONALD & MCDONALD, Waco, TX.
For
Appellee/Respondent:
John
W.
Segrest,
MCLENNAN COUNTY DISTRICT ATTORNEY,
Waco TX.
JUDGES: Before Chief Justice Gray, Justice Reyna,
and, Justice Davis.
OPINION BY: REX D. DAVIS
OPINION
MEMORANDUM OPINION
William Ray Phillips was charged by indictment
with twelve felony offenses (aggravated sexual assault, indecency with a child, aggravated sexual
abuse, and aggravated rape of child). A jury found
him guilty on all twelve counts and assessed the
maximum punishments for each felony (ten, twenty,
and ninety-nine years, respectively). The trial court
App. 47
entered twelve separate judgments. Asserting four
issues, Phillips appeals. We will affirm.
Limitations
Phillips was charged with sexual offenses against
his daughter, S., allegedly committed on or about
October 1, 1982 through November 1, 1983. S. was
born on January 26, 1979, and Phillips was indicted
on January 10, 2007, just before her 28th birthday.
The trial judge instructed the jury that the indictment had to have been filed not more than ten years
after S. turned eighteen.
Phillips’s first issue complains that the ex post
facto provisions of the Texas and U.S. constitutions
were violated because the applicable statutes of
limitations had expired and subsequently amended
statutes of limitations were retroactively applied. The
State responds that Phillips failed to preserve his
complaint for appeal because his issue is not one of
retroactive application, but of application of an allegedly improper statute. We will assume without deciding that Phillips’s claim is properly before us and
proceed to its merits.
The legislature may extend the statute of limitations for prosecution of a criminal offense after the
offense has been committed but before the expiration
of the original limitations period. Lindsey v. State,
760 S.W.2d 649, 653 (Tex. Crim. App. 1988). At the
time the alleged sexual molestations began, the
statute of limitations for sexual assault in article
App. 48
12.01 of the Code of Criminal Procedure was that of
“all other felonies,” three years from the commission
of the offense. See Act of May 15, 1975, 64th Leg.,
R.S., ch. 203, § 5, 1975 Tex. Gen. Laws 476, 478.
Article 12.01 was amended in April 1983 (to take
effect September 1, 1983) to provide a five-year
statute of limitations for “rape, aggravated rape,
sexual abuse, aggravated sexual abuse, rape of a
child, [and] sexual abuse of a child.” Act of April 21,
1983, 68th Leg., R.S., ch. 85, §§ 1-2, 1983 Tex. Gen.
Laws 413, 413-14 (also providing that it does not
apply to an offense whose prosecution became barred
by limitations on or before Aug. 31, 1983); see also Act
of May 27, 1983, 68th Leg., R.S., ch. 977, §§ 7, 14,
1983 Tex. Gen. Laws 5311, 5318, 5321 (five-year
limitation for “sexual assault,” to take effect Sept. 1,
1983). In 1985, article 12.01 was amended again, this
time to remove the language in the Act of April 21,
1983 and to add “indecency with a child” to the fiveyear statute. See Act of May 17, 1985, 69th Leg., R.S.,
ch. 330, § 1, 1985 Tex. Gen. Laws 1393. It likewise
provided that the amended statute did not apply to
an offense if prosecution of that offense became
barred by limitations as of the passage of the amended statute. See id. §§ 2, 3, 1985 Tex. Gen. Laws 1393.
In 1987, article 12.01 was amended yet again,
this time providing a ten-year statute of limitations
for sexual assault of a child and indecency with a
child and taking effect September 1, 1987. See Act of
May 31, 1987, 70th Leg., R.S., ch. 716, § 1, 1985 Tex.
Gen. Laws 2591. That amendment provided as well
App. 49
that it did not apply to an offense if prosecution of
that offense became barred by limitations before
September 1, 1987. See id. §§ 2, 3, 1987 Tex. Gen.
Laws 2591. The statute of limitations for the current
version of article 12.01 was added in 1997; for indecency with a child, sexual assault of a child, and
aggravated sexual assault of a child, it is ten years
from the 18th birthday of the victim of the offense,
and it took effect September 1, 1997. See Act of May
24, 1997, 75th Leg., R.S., ch. 740, §§ 1, 4, 1997 Tex.
Gen. Laws 2403 (current version at TEX. CODE
CRIM. PROC. ANN. art. 12.01(5) (Vernon Supp.
2008)). It likewise provided that it did not apply to an
offense if prosecution of that offense became barred
by limitations before September 1, 1997. See id. § 3,
1997 Tex. Gen. Laws 2403.
We agree with the State that, under Lindsey, if
the charged offenses were committed within three
years of the statute of limitations effective September
1, 1985, they can be carried forward under each
successive amendment to article 12.01 so that they
are ultimately covered by the latest period, which is
ten years after the victim’s 18th birthday.
The evidence shows that S., who was born in
January 1979, recounted four separate episodes of
sexual assaults that occurred during visits to Phillips’s home, and the earliest visit would have occurred
in March of 1983. Thus, each of the three episodes
that formed the basis for the twelve counts in the
indictment occurred on or after September 1, 1982.
Because the evidence showed that alleged offenses
App. 50
occurred within three years of the 1985 amendment
to article 12.01, the statute of limitations had not
expired, the successive amendments were applicable,
and the prosecution was never time-barred. The
indictment was thus timely issued, and no ex post
facto violation is shown. We overrule the first issue.
Sufficiency of the Evidence
Phillips’s next two issues complain about the
legal and factual sufficiency of the evidence of the
guilty verdicts on various counts under the statutes
in effect at the time of the offenses. More specifically,
in his second issue, Phillips argues that the aggravating element – the victim being under the age of
fourteen – was added to the penal code effective
September 1, 1981, and if the offenses alleged in
Counts 1, 2, and 6 occurred before September 1, 1981,
there could not have been an aggravated crime under
former Penal Code sections 21.03 and 21.05, as
alleged. See Act of May 12, 1981, 67th Leg., R.S., ch.
202, §§ 1, 2, 6, 1981 Tex. Gen. Laws 471, 471-72. With
respect to Counts 7, 8, and 12, former Penal Code
section 21.05 was repealed and replaced by section
22.021, effective September 1, 1983. See Act of May
29, 1983, 68th Leg., R.S., ch. 977, §§ 3, 14, 1983 Tex.
Gen. Laws 5311, 5315, 5321 (current version at TEX.
PEN. CODE ANN. § 22.021 (Vernon Supp. 2008)).
The State concurs with Phillips’s set up but not with
his complaint that the evidence is legally and factually insufficient to prove that the offenses occurred on
App. 51
or after September 1, 1981 and September 1, 1983,
respectively.
When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a
penal offense, we must determine whether, after
viewing all the evidence in the light most favorable to
the verdict, any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);
Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim.
App. 1992). Any inconsistencies in the evidence are
resolved in favor of the verdict. Curry v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000).
In a factual sufficiency review, we ask whether a
neutral review of all the evidence, though legally
sufficient, demonstrates either that the proof of guilt
is so weak or that conflicting evidence is so strong as
to render the factfinder’s verdict clearly wrong and
manifestly unjust. Watson v. State, 204 S.W.3d. 404,
414-15 (Tex. Crim. App. 2006); Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the evidence weighed by the jury that tends to
prove the existence of the elemental fact in dispute
and compares it with the evidence that tends to
disprove that fact.” Johnson, 23 S.W.3d at 7. The
appellate court “does not indulge in inferences or
confine its view to evidence favoring one side of the
case. Rather, it looks at all the evidence on both sides
and then makes a predominantly intuitive judgment. . . .” Id. (quoting William Powers and Jack
App. 52
Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L. REV. 515, 519 (1991)).
The nature of a factual sufficiency review authorizes
an appellate court, although to a very limited degree,
to act as the so-called “thirteenth juror” to review the
factfinder’s weighing of the evidence and disagree
with the factfinder’s determination. Watson, 204
S.W.3d at 416-17.
Phillip’s ex-wife testified that they moved to a
house on Ruby Avenue in Waco in March of 1983. S.
and her sister visited Phillips there multiple times,
with the visits spaced roughly six to nine months
apart and the first visit occurring in March of 1983 at
the earliest. None of the criminal conduct that S.
testified about in this first visit form the basis of the
charged offenses, and Phillips’s ex-wife estimated
that the second visit would have occurred in September of 1983, if not later. Thus, there is legally and
factually sufficient evidence to prove that each of the
three episodes that S. recounted and that form the
basis for the counts at issue occurred after September
1, 1983. Viewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact
could have found beyond a reasonable doubt that
these offenses were committed after September 1,
1983. And considering all of the evidence in a neutral
light, we find that the evidence is factually sufficient.
The proof of guilt is not so weak nor the conflicting
evidence so strong as to render the jury’s verdict
clearly wrong and manifestly unjust. Because the
App. 53
evidence is legally and factually sufficient, we overrule Phillip’s second and third issues.
Jury Instruction
Phillips’s fourth issue asserts that the trial
court’s instruction in the punishment charge that the
jury should not let “sympathy” affect its deliberations
and verdict is constitutional error that caused egregious harm in this non-capital case. We have recently
decided this issue against Phillips’s position and see
no occasion to revisit our ruling. See Wilson v. State,
267 S.W.3d 215, 219-20 (Tex. App.-Waco 2008, pet.
ref ’d) (citing Saffle v. Parks, 494 U.S. 484, 489, 110
S.Ct. 1257, 1260-61, 108 L.Ed.2d 415 (1990) (holding
that jurors need not “be allowed to base the sentencing decision upon the sympathy they feel for the
defendant after hearing his mitigating evidence.”)).
Phillips’s fourth issue is overruled.
We affirm the trial court’s judgments.
App. 54
WILLIAM RAY PHILLIPS
PD-1402-09
COURT OF CRIMINAL APPEALS OF TEXAS
2011 Tex. Crim. App. LEXIS 1218
September 14, 2011, Decided
JUDGES: JUDGE MEYERS WOULD GRANT.
JUDGE KEASLER WOULD GRANT.
OPINION
STATE’S MOTION FOR REHEARING DENIED
ON APPELLANT’S GRANTED PETITION. (JUDGE
MEYERS WOULD GRANT). (JUDGE KEASLER
WOULD GRANT)
App. 55
CODE OF CRIMINAL PROCEDURE
TITLE 1. CODE OF CRIMINAL
PROCEDURE OF 1965
LIMITATION AND VENUE
CHAPTER 12. LIMITATION
Tex. Code Crim. Proc. art. 12.01 (2011)
Art. 12.01. Felonies
Except as provided in Article 12.03, felony indictments may be presented within these limits, and
not afterward:
(1)
no limitation:
(A)
murder and manslaughter;
(B) sexual assault under Section
22.011(a)(2), Penal Code, or aggravated sexual assault under Section 22.021(a)(1)(B), Penal Code;
(C) sexual assault, if during the investigation of the offense biological matter is collected
and subjected to forensic DNA testing and the testing
results show that the matter does not match the
victim or any other person whose identity is readily
ascertained;
(D) continuous sexual abuse of young
child or children under Section 21.02, Penal Code;
(E) indecency with a child under Section 21.11, Penal Code;
App. 56
(F) an offense involving leaving the
scene of an accident under Section 550.021, Transportation Code, if the accident resulted in the death of a
person; or
(G) [2 Versions: As added by Acts 2011,
82nd Leg., ch. 1] trafficking of persons under Section
20A.02(a)(7) or (8), Penal Code;
(G) [2 Versions: As added by Acts 2011,
82nd Leg., ch. 122] continuous trafficking of persons
under Section 20A.03, Penal Code;
(2) ten years from the date of the commission of the offense:
(A) theft of any estate, real, personal or
mixed, by an executor, administrator, guardian or
trustee, with intent to defraud any creditor, heir,
legatee, ward, distributee, beneficiary or settlor of a
trust interested in such estate;
(B) theft by a public servant of government property over which he exercises control in
his official capacity;
(C) forgery or the uttering, using or
passing of forged instruments;
(D) injury to an elderly or disabled individual punishable as a felony of the first degree
under Section 22.04, Penal Code;
(E) sexual assault, except as provided
by Subdivision (1);
App. 57
(F)
arson;
(G) trafficking of persons under Section
20A.02(a)(1), (2), (3), or (4), Penal Code; or
(H) compelling prostitution under Section 43.05(a)(1), Penal Code;
(3) seven years from the date of the commission of the offense:
(A) misapplication of fiduciary property
or property of a financial institution;
(B) securing execution of document by
deception;
(C) a felony violation under Chapter
162, Tax Code;
(D) false statement to obtain property
or credit under Section 32.32, Penal Code;
(E) money laundering;
(F) credit card or debit card abuse under Section 32.31, Penal Code;
(G) fraudulent use or possession of
identifying information under Section 32.51, Penal
Code; or
(H) [2 Versions: As added by Acts 2011,
82nd Leg., ch. 222] bigamy under Section 25.01,
Penal Code, except as provided by Subdivision (6);
App. 58
(H) [2 Versions: As added by Acts 2011,
82nd Leg., ch. 620] Medicaid fraud under Section
35A.02, Penal Code;
(4) five years from the date of the commission of the offense:
(A)
theft or robbery;
(B) except as provided by Subdivision
(5), kidnapping or burglary;
(C) injury to an elderly or disabled individual that is not punishable as a felony of the first
degree under Section 22.04, Penal Code;
(D)
abandoning or endangering a child; or
(E)
insurance fraud;
(5) if the investigation of the offense shows
that the victim is younger than 17 years of age at the
time the offense is committed, 20 years from the 18th
birthday of the victim of one of the following offenses:
(A) sexual performance by a child under Section 43.25, Penal Code;
(B) aggravated kidnapping under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the
victim sexually; or
(C) burglary under Section 30.02, Penal
Code, if the offense is punishable under Subsection
(d) of that section and the defendant committed the
App. 59
offense with the intent to commit an offense described
by Subdivision (1)(B) or (D) of this article or Paragraph (B) of this subdivision;
(6) [2 Versions: As amended by Acts 2011,
82nd Leg., ch. 1] ten years from the 18th birthday of
the victim of the offense:
(A) trafficking of persons under Section
20A.02(a)(5) or (6), Penal Code;
(B) injury to a child under Section
22.04, Penal Code; or
(C) compelling prostitution under Section 43.05(a)(2), Penal Code; or
(6) [2 Versions: As amended by Acts 2011,
82nd Leg., ch. 222] ten years from the 18th birthday
of the victim of the offense:
(A) injury to a child under Section
22.04, Penal Code; or
(B) bigamy under Section 25.01, Penal
Code, if the investigation of the offense shows that
the person, other than the legal spouse of the defendant, whom the defendant marries or purports to
marry or with whom the defendant lives under the
appearance of being married is younger than 18 years
of age at the time the offense is committed; or
(7) three years from the date of the commission of the offense: all other felonies.
App. 60
HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722
(S.B. 107), § 1, effective January 1, 1966; am. Acts
1973, 63rd Leg., ch. 399 (S.B. 34), § 2(B), effective
January 1, 1974; am. Acts 1975, 64th Leg., ch. 203
(H.B. 284), § 5, effective September 1, 1975; am. Acts
1983, 68th Leg., ch. 85 (S.B. 343), § 1, effective September 1, 1983; am. Acts 1983, 68th Leg., ch. 977
(H.B. 2008), § 7, effective September 1, 1983; am. Acts
1985, 69th Leg., ch. 330 (H.B. 1149), § 1, effective
August 26, 1985; am. Acts 1987, 70th Leg., ch. 716
(H.B. 494), § 1, effective September 1, 1987; am. Acts
1991, 72nd Leg., ch. 565 (S.B. 4), § 6, effective September 1, 1991; am. Acts 1995, 74th Leg., ch. 476
(S.B. 698), § 1, effective September 1, 1995; am. Acts
1997, 75th Leg., ch. 740 (H.B. 921), § 1, effective
September 1, 1997; am. Acts 1999, 76th Leg., ch. 39
(S.B. 70), § 1, effective September 1, 1999; am. Acts
1999, 76th Leg., ch. 1285 (S.B. 1547), § 33, effective
September 1, 2000; am. Acts 2001, 77th Leg., ch. 12
(H.B. 656), § 1, effective September 1, 2001; am. Acts
2001, 77th Leg., ch. 1479 (S.B. 214), § 1, effective
September 1, 2001; am. Acts 2001, 77th Leg., ch. 1482
(S.B. 328), § 1, effective September 1, 2001; am. Acts
2003, 78th Leg., ch. 371 (S.B. 1460), § 6, effective
September 1, 2003; am. Acts 2003, 78th Leg., ch. 1276
(H.B. 3507), § 5.001, effective September 1, 2003; am.
Acts 2005, 79th Leg., ch. 1162 (H.B. 3376), § 6, effective September 1, 2005; am. Acts 2007, 80th Leg., ch.
285 (H.B. 716), § 6, effective September 1, 2007; am.
Acts 2007, 80th Leg., ch. 593 (H.B. 8), § 1.03, effective
September 1, 2007; am. Acts 2007, 80th Leg., ch. 640
(H.B. 887), § 1, effective September 1, 2007; am. Acts
App. 61
2007, 80th Leg., ch. 841 (H.B. 959), § 1, effective
September 1, 2007; am. Acts 2009, 81st Leg., ch. 87
(S.B. 1969), § 6.001, effective September 1, 2009; am.
Acts 2009, 81st Leg., ch. 1227 (S.B. 1495), § 38,
effective September 1, 2009; am. Acts 2011, 82nd
Leg., ch. 1 (S.B. 24), § 2.03, effective September 1,
2011; am. Acts 2011, 82nd Leg., ch. 122 (H.B. 3000),
§ 2, effective September 1, 2011; am. Acts 2011, 82nd
Leg., ch. 222 (H.B. 253), § 1, effective September 1,
2011; am. Acts 2011, 82nd Leg., ch. 620 (S.B. 688),
§ 1, effective September 1, 2011.
NOTES:
2003 Note:
The change in law made by ch. 371 to Article
12.01, Code of Criminal Procedure, does not apply to
an offense if the prosecution of that offense became
barred by limitation before the effective date of this
Act. The prosecution of that offense remains barred
as if this Act had not taken effect. Acts 2003, 78th
Leg., ch. 371, § 7(c).
2001 Note:
Ch. 1479 takes effect September 1, 2001. The
change in law made by ch. 1479 does not apply to an
offense if the prosecution of that offense became
barred by limitation before September 1, 2001. The
prosecution of that offense remains barred as if this
Act had not taken effect. Acts 2001, 77th Leg., ch.
1479, § 2.
App. 62
1999 Note:
The change in law made by ch. 1285 does not
apply to an offense if the prosecution of the offense
became barred by limitation before the effective date
of this Act. The prosecution of that offense remains
barred as though this Act had not taken effect. Acts
1999, 76th Leg., ch. 1285, § 36.
Editor’s Notes. –
Chapter 12, Limitation, as added by Acts 1965,
59th Leg., ch. 722 (S.B. 107), § 1 and consisting of
arts. 12.01 to 12.09, was amended and reorganized as
Chapter 12, Limitation, arts. 12.01 to 12.07, by Acts
1973, 63rd Leg., ch. 399 (S.B. 34), § 2(B), effective
January 1, 1974.
Acts 2009, 81st Leg., ch. 1227 (S.B. 1495), § 43
provides: “The change in law made by this Act does
not affect tax liability accruing before the effective
date of this Act [September 1, 2009]. That liability
continues in effect as if this Act had not been enacted,
and the former law is continued in effect for the
collection of taxes due and for civil and criminal
enforcement of the liability for those taxes.”
Applicability. –
Acts 2007, 80th Leg., ch. 285 (H.B. 716), § 7
provides: “The change in law made by this Act to
Article 12.01, Code of Criminal Procedure, does not
apply to an offense if the prosecution of that offense
became barred by limitation before the effective date
of this Act [September 1, 2007]. The prosecution of
App. 63
that offense remains barred as if this Act had not
taken effect.”
Acts 2007, 80th Leg., ch. 593 (H.B. 8), § 4.01(c)
provides: “The change in law made by this Act to
Article 12.01, Code of Criminal Procedure, does not
apply to an offense if the prosecution of that offense
becomes barred by limitation before the effective date
of this Act [September 1, 2007]. The prosecution of
that offense remains barred as if this Act had not
taken effect.”
Acts 2007, 80th Leg., ch. 640 (H.B. 887), § 2
provides: “The change in law made by this Act to
Article 12.01, Code of Criminal Procedure, does not
apply to an offense if the prosecution of that offense
became barred by limitation before the effective date
of this Act [September 1, 2007]. The prosecution of
that offense remains barred as if this Act had not
taken effect.”
Acts 2007, 80th Leg., ch. 841 (H.B. 959), § 2
provides: “The change in law made by this Act to
Article 12.01, Code of Criminal Procedure, does not
apply to an offense if the prosecution of that offense
became barred by limitation before the effective date
of this Act [September 1, 2007]. The prosecution of
that offense remains barred as if this Act had not
taken effect.”
Acts 2009, 81st Leg., ch. 1227 (S.B. 1495), § 42
provides:
App. 64
“(a) The change in law made by this Act applies
only to an offense committed on or after the effective
date of this Act [September 1, 2009]. For purposes of
this section, an offense is committed before the effective date of this Act if any element of the offense
occurs before that date.
(b) An offense committed before the effective
date of this Act is governed by the law in effect when
the offense was committed, and the former law is
continued in effect for that purpose.”
Acts 2011, 82nd Leg., ch. 1 (S.B. 24), § 7.01
provides: “The change in law made by this Act applies
only to an offense committed on or after the effective
date of this Act [September 1, 2011]. An offense
committed before the effective date of this Act is
governed by the law in effect on the date the offense
was committed, and the former law is continued in
effect for that purpose. For purposes of this section,
an offense was committed before the effective date of
this Act if any element of the offense occurred before
that date.”
Acts 2011, 82nd Leg., ch. 122 (H.B. 3000), § 15
provides: “The change in law made by this Act applies
only to an offense committed on or after the effective
date of this Act [September 1, 2011]. An offense
committed before the effective date of this Act is
governed by the law in effect on the date the offense
was committed, and the former law is continued in
effect for that purpose. For purposes of this section,
an offense was committed before the effective date of
App. 65
this Act if any element of the offense occurred before
that date.”
Acts 2011, 82nd Leg., ch. 222 (H.B. 253), § 6
provides: “The change in law made by this Act to
Article 12.01, Code of Criminal Procedure, does not
apply to an offense if the prosecution of that offense
becomes barred by limitation before the effective date
of this Act [September 1, 2011]. The prosecution of
that offense remains barred as if this Act had not
taken effect.”
Acts 2011, 82nd Leg., ch. 620 (S.B. 688), § 12(b)
provides: “The change in law made by this Act in
amending Article 12.01, Code of Criminal Procedure,
does not apply to an offense if the prosecution of that
offense becomes barred by limitation before the
effective date of this Act [September 1, 2011]. The
prosecution of that offense remains barred as if this
Act had not taken effect.”
2007 amendment,
by ch. 285, added (3)(D) and (E); and made related changes.
2007 amendment,
by ch. 593, redesignated (1)(B) as (1)(C); added
(1)(B), (D), and (E); redesignated former (1)(C) as
(1)(F); deleted “burglary” after “theft” in (4)(A); rewrote (B), which read: “kidnapping”; and rewrote (5),
which read: “ten years from the 18th birthday of the
victim of the offense: (A) indecency with a child under
Section 21.11(a)(1) or (2), Penal Code; or (B) except as
App. 66
provided by Subdivision (1), sexual assault under
Section 22.011(a)(2), Penal Code, or aggravated sexual
assault under Section 22.021(a)(1)(B), Penal Code.”
2007 amendment,
by ch. 640, added (3)(D), (E), and (F) and made a
related change.
2007 amendment,
by ch. 841, substituted “an elderly” for “a child,
individual” in (2)(D) and (4)(C); added (5)(C); and
made related changes.
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