Phillips, William Ray
2011 Tex. Crim. App. LEXIS 825
| Tex. Crim. App. | 2011Background
- Phillips challenges a conviction under an ex post facto and limitations framework in a discretionary review from the Tenth Court of Appeals (McLennan County).
- Dissenting opinion argues no ex post facto violation because no retroactive law was enacted by the legislature and the issue was forfeited for not raising the defense at trial.
- The 1997 amendments to the limitations statute included a savings provision preserving prosecutions that were already time-barred before the act, which the dissent reads as controlling here.
- The majority purportedly treated the 1997 amendments as applying to offenses barred earlier, but the dissent maintains they do not apply to Phillips’ 1993 time-barred sex offenses.
- The dissent concludes that the limitations defense was forfeited and that there is no ex post facto violation stemming from judicial application of a statute where the saving clause prevents retroactive reach.
- Filed: June 15, 2011, with the dissent joined by Justices Keasler and Hervey.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1997 savings provision avoided an ex post facto violation | Phillips | State | No ex post facto violation; savings provision applies. |
| Whether the limitations defense was forfeited on appeal | Phillips | State | Yes, forfeited. |
| Whether a judicial misapplication of a statute can create an ex post facto violation when the statute itself is not retroactive | Phillips | State | No, not where savings provision shields retroactive reach. |
Key Cases Cited
- Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002) (ex post facto clause directed at legislature; judiciary not constrained as to retroactivity in the same way)
- Rogers v. Tennessee, 532 U.S. 451 (U.S. 2001) (due process vs ex post facto distinctions; retroactivity inquiry different for judiciary)
- Johnson v. United States, 529 U.S. 694 (U.S. 2000) (retroactivity depends on whether new statute applies to conduct; no ex post facto if not retroactive)
- Carmell v. Texas, 529 U.S. 513 (U.S. 2000) (changes to evidentiary standards; lacking savings provision can be retroactive in effect)
- Scott v. State, 55 S.W.3d 593 (Tex. Crim. App. 2001) (enhancement statute retroactivity and need for savings clause)
- Stogner v. California, 539 U.S. 607 (U.S. 2003) (resurrection of time-barred prosecutions; ex post facto concerns)
- Sneed v. State, 25 Tex. 66 (Tex. 1860) (early limitation-extension concerns; not controlling for judicial misapplication)
- Shedd v. People, 702 P.2d 267 (Colo. 1985) (retroactive application of statute of limitations; discusses ex post facto scope)
- Rocheleau, 404 Mass. 129, 533 N.E.2d 1333 (Mass. 1989) (limitations cannot be legislatively extended to revive time-barred prosecutions)
- F-traidin, 63 F. Supp. 271 (D.C. Md. 1945) (federal discussion on retroactivity and ex post facto)
- Garcia v. State, 169 P.2d 1069 (Kan. 2007) (legislative extension of limitations; ex post facto analysis applied to amendments)
- Ex parte Smith, 178 S.W.3d 797 (Tex. Crim. App. 2005) (limitations defenses—pleading and procedural posture)
- Ex parte Dickerson, 549 S.W.2d 202 (Tex. Crim. App. 1977) (pretrial handling of limitations challenges)
- Tita v. State, 267 S.W.3d 33 (Tex. Crim. App. 2008) (indictment defenses and limitations considerations)
- Wright v. State, 981 S.W.2d 197 (Tex. Crim. App. 1998) (discussion on forfeiture and limitations)
- Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998) (limitations as forfeitable defense)