Joseph Patrick DALLAS, Jr., Appellant, v. The STATE of Texas.
No. 899-97.
Court of Criminal Appeals of Texas, En Banc.
Dec. 16, 1998.
983 S.W.2d 276
Id. at 489 (citations omitted)(emphasis added). Thus, the burden was on the State to prove at trial that the offense occurred within the statute of limitations period, or that there was tolling. Failure of the State to meet its burden did not need to be objected to at trial; it could be raised for the first time on appeal, at which time a defendant could complain about the failure in an insufficiency of the evidence-type claim.
The Court of Appeals in the instant case followed controlling precedent:
The State argues that, because Floyd did not object to the indictment on the ground that it was barred by limitations, he waived the limitations defense. The failure to timely object to the indictment waives a claim of a limitations defect in the indictment; it does not waive a claim that the evidence is insufficient to support the conviction because it shows that limitations has run. Lemell v. State, 915 S.W.2d 486 (Tex.Crim.App.1995). Floyd specifically attacked the sufficiency of the evidence because it showed limitations had run. The undisputed evidence shows that limitations had run. That being true, we must reverse the judgment and order an acquittal in this case.
However, a hundred years of precedent, Lemell included, was overruled subsequent to the trial in the instant case and subsequent to the Court of Appeals’ opinion. See, Proctor v. State, 967 S.W.2d 840 (Tex.Crim. App.1998). Under the new law, the statute of limitations is a “defense” which “is forfeited if not asserted at or before the guilt/innocence stage of trial.” Id. at 844. In Proctor, the defendant‘s claim that the offense was not proven to have occurred within the limitations period was procedurally defaulted because he did not raise it at trial, even though he was not required to object at trial under the law at the time of his trial. Thus, Proctor holds that a defendant procedurally defaults any claim as to a limitations issue by failing to object at trial, even if the law at the time of his trial did not require an objection in order to preserve the issue. What a twisted state of affairs.
Believing the majority‘s reliance on Proctor which operates to deprive appellant of a defense which was available at the time the instant offenses were committed, is judicial action which contravenes the Ex post Facto Clauses of the United States and Texas Constitutions, I dissent.
OVERSTREET, J., joins this opinion.
R. Scott Shearer, Houston, for appellant.
Julie Klibert, Asst. Dist. Atty., Houston, Matthew Paul, State‘s Atty., Austin, for State.
McCORMICK, P.J., delivered the opinion of the Court, in which BAIRD, OVERSTREET, KELLER, and HOLLAND, JJ., joined.
Appellant appealed his conviction for the misdemeanor offense of cruelty to animals. As one of the conditions of bail pending appellant‘s appeal, the trial court prohibited appellant from engaging in the business of training and kenneling dogs. We have exercised our discretionary authority to review the Court of Appeals’ decision that the trial court lacked authority to place any conditions like this on bail in misdemeanor appeals “unless specifically provided for by statute.” Dallas v. State, 945 S.W.2d 328, 329-30 (Tex.App.-Houston [1st Dist.] 1997).
Consistent with the implicit decision of the Court of Appeals, appellant argues trial courts are prohibited from imposing in misdemeanor appeals conditions of bail that are not specifically authorized by a legislative grant of authority. Appellant further argues that because the condition that a defendant cease his lawful employment is not a condition specifically provided for by statute, the Court of Appeals correctly held the trial court erred by attaching this condition to appellant‘s bail.
However, the law is that absent legislative intent to the contrary a trial court has inherent power in misdemeanor and felony appeals to impose conditions on bail that directly or indirectly relate to the purpose of assuring the defendant‘s continued appearance. See Ex parte Estrada, 594 S.W.2d 445, 446-47 (Tex.Cr.App.1980); Easton v. Rains, 866 S.W.2d 656, 659 (Tex.App.-Houston [1st Dist.] 1993, no pet.) (holding most conditions of appeal bond directly or indirectly related to assuring defendant‘s continued appearance in court); Rodriguez v. State, 744 S.W.2d 361, 363 (Tex.App.-Corpus Christi 1988, no pet.) (condition of appeal bond that defendant have “no contact” with his ex-wife not abuse of discretion because this condition indirectly related to purpose of assuring defendant‘s presence in court). This inherent power to impose these conditions of bail is not limited to felony cases and does not depend upon a legislative grant of authority. See Estrada, 594 S.W.2d at 446; see also State v. Johnson, 821 S.W.2d 609, 612 (Tex.Cr.App.1991) (generally court‘s power to act is limited to actions authorized by constitution, statute or common law unless a power to act arises from an inherent or implied power).
Applying a rule of statutory construction which the Court of Appeals characterized as “the inclusion of one provision is the express exclusion of similar provisions,” the Court of Appeals seems to have implied or inferred a legislative intent to prohibit trial courts from exercising their inherent power to impose conditions of bail in misdemeanor appeals from Article 44.04(c)‘s authorizing conditions of bail in felony appeals and Article 44.04(a)‘s not expressly authorizing these conditions in misdemeanor appeals.2
The rule of statutory construction purportedly applied by the Court of Appeals is expressed in the Latin maxim: expressio unius est exclusio alterius. Black‘s Law Dictionary defines this maxim as follows:
“Expression of one thing is the exclusion of another. (Citations Omitted). Mention of one thing implies exclusion of another. (Citations Omitted). When certain persons or things are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred. (Citation Omitted).”
“Under this maxim, if statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded. (Citation Omitted).” (Emphasis Supplied). Black‘s Law Dictionary, Fourth Edition (1951), p. 692.
Texas case law defines this rule of statutory construction somewhat differently from how the Court of Appeals defined it. Texas case law defines this rule of statutory construction as a statute‘s “inclusion of [a] specific limitation excludes all others” or a statute‘s “inclusion of a specific limitation excludes all other limitations of that type.” See Harris County v. Crooker, 112 Tex. 450, 248 S.W. 652, 655 (Tex.1923) (applying this rule of statutory construction to hold Harris County District Attorney could retain any fees “earned outside of the criminal district court” because the Legislature placed all limitations on subject of the district attorney‘s compensation that it desired to be placed thereon by placing a limitation on the amount of compensation or excess fees which the district attorney could retain but confining that limitation to fees arising from the criminal district court); Guinn v. State, 696 S.W.2d 436, 438 (Tex.App.-Houston [14th Dist.] 1985, pet. ref‘d) (applying this rule of statutory construction to hold a special enhancement provision in the DWI law excludes all other enhancement schemes, such as the general enhancement provision);3 Brookshire v. Houston Independent
The “plain” or literal language of Article 44.04(a) contains no express legislative intent to deprive trial courts of their long-held inherent power to impose conditions of bail in misdemeanor appeals. See Estrada, 594 S.W.2d at 446-47 (courts’ inherent powers to place restrictive conditions on bail based on common law of England and development of the common law and statutory law in the United States).5 Therefore, we would have to infer or imply such an intent based on the language contained in Article 44.04(c) that expressly authorizes conditions of bail in felony appeals.
This we decline to do. The history of the common law on trial courts’ inherent powers to impose conditions of bail makes no distinction between felony and misdemeanor cases. See Estrada, 594 S.W.2d at 446-47. The Legislature has to have been aware that courts traditionally have imposed conditions of bail in misdemeanor appeals in the absence of express legislative grant of authority to do so.6
While Estrada involved a felony appeal, the principle it applied that trial courts have long had inherent power to place conditions on bail is in no way limited to felony cases. See Estrada, 594 S.W.2d at 446-47. With its presumed knowledge of the common law and trial courts’ traditional practices concerning matters of bail in misdemeanor appeals the Legislature has amended Article 44.04 several times since Estrada was decided without expressly depriving trial courts of their inherent power to impose conditions of bail in misdemeanor appeals.7 See
The Court of Appeals’ construction of Article 44.04(a) also would deprive trial courts of the power in misdemeanor appeals to impose extra-statutory conditions on bail that directly or indirectly relate to the purpose of assuring the defendant‘s continued appearance even when the defendant is a known flight
We also disagree with the Court of Appeals that the expressio unius est exclusio alterius rule of statutory construction or any variation thereof applies to this case. As the Court of Appeals pointed out the provisions of Article 44.04(a) and Article 44.04(c) “are unique and separate.” See Dallas, 945 S.W.2d at 329. One should not be read in conjunction with the other. Each should be read independent of the other.
Moreover, neither of these statutory provisions specify “one exception to a general rule” or assume “to specify the effects of a certain provision.” See Black‘s Law Dictionary, Fourth Edition (1951), p. 692. Nor do any of these statutory provisions contain an “inclusion of a specific limitation.” See Crooker, 248 S.W. at 655. We hold a trial court has inherent power in misdemeanor appeals to impose conditions on bail that directly or indirectly relate to the purpose of assuring the defendant‘s continued appearance.
Applying these principles to this case, we decide the trial court abused its discretion to prohibit appellant from engaging in the business of training and kenneling dogs as a condition of bail. This condition is not relevant to securing appellant‘s appearance in court. Compare Speth v. State, 939 S.W.2d 769, 771 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (prohibiting defendant from working as chiropractor for duration of his appeal from conviction for aggravated assault on a police officer was invalid condition of appeal bond).
Because the imposition of this bail condition may have affected the trial court‘s decision on other bail issues, we vacate the judgment of the Court of Appeals and remand the cause to the trial court for a redetermination of bail.1
PRICE, J., filed a concurring opinion joined by MEYERS, J..
WOMACK, J., filed a concurring opinion.
MANSFIELD, J., filed a concurring and dissenting opinion.
PRICE, J., concurring.
I concur in the judgment only and write separately to explain my reasons for doing so.
Appellant was convicted of cruelty to animals, a misdemeanor. The jury assessed punishment at one year confinement and Appellant appealed. As a condition of his appeal bond, the trial court ordered Appellant to refrain from engaging in the business of training and kenneling dogs. Appellant brought an accelerated appeal pursuant to
The majority‘s basis for its analysis is that “... absent legislative intent to the contrary, a trial court has inherent power in misdemeanor and felony appeals to impose conditions on bail that directly or indirectly relate to the purpose of assuring the defendant‘s continued appearance.” Ante, at 277 (emphasis added). However, the cases cited by the majority do not support this proposition.
Estrada v. State, 594 S.W.2d 445 (Tex.Crim.App. [Panel Op.] 1980) dealt with conditions placed upon an appeal bond, pursuant to an appeal of a conviction for possession of
Rules for fixing bail are governed by Chapter 17 of the Code of Criminal Procedure. Ex parte Davila, 623 S.W.2d 408, 409 (Tex.Crim.App.1981). Once an accused has been found guilty and the appellate process begins, the application of Chapter 17 is “modified somewhat and supplemented by additional relevant considerations reflected by the provisions of Article 44.04 ...” Id. at 410. The very language of Article 44.04(a) reveals that a misdemeanant is entitled to release on reasonable bail pending appeal. Thus, the trial court must consider an application for bail, and it must do so in accordance with Article 44.04. Id.; see also Ex parte Byers, 612 S.W.2d 534, 536 (Tex.Crim.App.1980) (observing that Art. 44.04 confers a general right to bail after conviction, except in certain circumstances).
If the language of Art. 44.04 is clear and unambiguous, courts must give effect to its plain meaning. Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991). If its meaning is not clear, however, then this Court may consider extratextual factors to interpret the statute. Id. at 785-86. When a felony conviction is being appealed there is express statutory authority to impose reasonable conditions of bail.
majority does not reach this conclusion, I cannot join its opinion.
The majority vacates the judgment of the Court of Appeals and remands the cause to the trial court for redetermination of bail. I would simply affirm the judgment of the Court of Appeals, which would result in remand to the trial court for redetermination of bail. Based on the foregoing, I concur only in the judgment of the majority.
WOMACK, J., concurring.
I join the judgment of the Court and, except for the paragraphs that contain footnotes 3 and 4, its opinion. Those paragraphs are unnecessary to the resolution of this case since, as the Court holds (ante at 279-280), the maxim of expressio unius est exclusio alterius does not apply to this case. And some of the language which those two paragraphs contain is at variance with the statement we recently made in Williams v. State, 965 S.W.2d 506, 507 (Tex.Cr.App.1998):
The expressio unius maxim has had widespread legal application, although it is not a rule of law and there is nothing peculiarly legal about it. Sutherland on Statutory Construction § 47.24 (5th ed.1992). It is a product of logic and common sense, expressing the learning of common experience that when people say one thing they do not mean something else. Ibid. The maxim acts merely as an aid to determine intent in statutes, contracts, wills, trusts, and other documents. Ibid. The maxim has been held to be inapplicable if there is some special reason for mentioning one thing and none for mentioning another. Id., § 47.23. En banc.
MANSFIELD, J., delivered the concurring and dissenting opinion.
I agree with the opinion of the majority that holds a trial court has inherent power in misdemeanor appeals to impose conditions on bail that directly or indirectly relate to the purpose of assuring the defendant‘s continued appearance. However, I respectfully submit that the trial court‘s inherent power is not limited to setting conditions relating to the defendant‘s continued appearance.
I would hold that
In the present case, appellant was convicted of cruelty to animals; it was clearly reasonable for the trial court, as a condition of his appeal bond, to order appellant not to train or board animals pending resolution of his appeal. The condition directly relates to the offense for which he was convicted; as such, it is not an abuse of discretion on the part of the trial court.
Accordingly, I would overrule the judgment of the court of appeals.
Notes
It is true that the Court of Appeals in Easton stated that courts have inherent power to place restrictive conditions on appeal bonds. Easton, 866 S.W.2d at 659. However, as noted above, that decision concerned an appeal of a felony conviction. Furthermore, the Court of Appeals cited Estrada as authority for its assertion; yet, Estrada itself, which dealt with conditions imposed pursuant to“Applying these [statutory construction] principles to article 44.04, we note the statute specifically authorizes conditions of bail pending a felony appeal, but does not authorize conditions of bail pending a misdemeanor appeal. We conclude from this exclusion that the legislature intended to give more control to trial courts considering bonds in felony appeals than to trial courts in misdemeanor appeals. Accordingly, we hold the trial court is not authorized to place conditions of bail pending a misdemeanor appeal, [Footnote Omitted] unless specifically provided for by statute.” Dallas, 945 S.W.2d at 330.