Phillips, William Ray

Ray PHILLIPS, Appellant, William of Texas.

The STATE No. PD-1402-09. Appeals Texas. Criminal

June McDonald, Waco,

Charles W. Appel- for lant.

Jоhn R. Messingers, Asst. State Prose- Austin, cuting Bell, Atty., D.A., Alex Asst. Waco, McMinn, Lisa C. Attorney, State’s Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of PRICE, WOMACK, the Court in which ALCALA, JJ., joined. JOHNSON and Appellant was convicted of twelve counts against of sexual offenses daughter his occurred 1982 and 1983. But pros- ecution under the charg- 2007 indictment ing appellant absolutely statute of 1993. These charges could not be resurrected a 1997 statute extending the statute of limitations for sexual offenses. No one—not the trial judge, defense, the prosecutor, or the court of appeals recognized this constitu- — tional ex violation. Because this important is an constitutional issue that undoubtedly will given recur the even sexually because appellant was scared statutory elimination more recent toddler, sexual of- her when she was a limitations for some abused him. fenses, petition thought was rid of She granted appellant’s we she had she gone the State discretionary Although review.1 know what to do. She had to did not (SPA) before, that agrees Prosecuting Attorney allegations FBI with of abuse run before of limitations had too the statute was told that it was late —that but she indictment, ap- argues she appellant’s of had run on issue for preserve 1983, failed pellаnt occurring when offenses in 1982 object he in the because did not appeal years two to four old. S.P. called she was prior opinions reaffirm trial court. We our where police find out her the Waco statute- have stated that an absolute where lived so she “would know father by bar not forfeited school, of-limitations I but I stay away. wanted to finish court. We failure to raise in the trial if feel I know I wanted to safe. didn’t held appeals, reverse the court of which police get protective order.” The could was appellant’s prosecution Advocacy suggested go that she barred.2 counseling. She Waco for did. Center another, led to and in 2007 thing

One I. was with various sexual appellant charged father, occurring “on or appellant, against ran into her offenses S.P. S.P. 30, September from going specified when she was and to school about” dates too, 1982, 1,1983.3 He, living in Waco. She to November in Waco. was 10-07-00346-CR, grounds Phillips 1.Appellant’s three read as v. for review No. 26, (Tex. 2009) Aug. App.-Waco WL 2644430 follows. (not designated publication). for appellate im- 1. Did the court [intermediate] apply Stogner properly decision in aggravated The offenses sexual included 607, 2446, California, 539 U.S. сontact, abuse, indecency child in- with a (2003) allowing 156 L.Ed.2d 544 convic- aggravated decency by exposure, with a child extin- tions for which had been offenses child, aggravated rape of a and sexual assault. guished running limitations and of thereby provisions violate the ex offense in the indictment was latest 12, the Texas Constitutions? alleging aggravated of and Federal sexual as- count 1, appellate court im- 2. Did the about 1983. Until [intermediate] sault on or November 1, 1983, properly interpret period September the ex and the limitations prohibitions years. law art. 12.01 retroactive Texas three Tex.Code Crim. Proc. 1, 1983, 1981). (Vernon thereby September al- Federal Effective Constitutions aggravated sexual convictions time-barred the limitations for low for offenses years. Act with dif- was increased to five of that contained different elements assault 1983, R.S., 977, 7, 31, §§ May Leg., that had 68th ch. ferent available defenses So, 14, being prosecu- repealed incapable of -1983 Tex. Gen. Laws 5317. were after No- prosecuted tion for count would be barred the State? years charged jury improperly vember 1988. But before those five 3. The Court up, legislature again were extended the to the correct statute of limitations and September thereby egregious Effective caused Petitioner harm limitations. aggravated for for and this cause should be remanded analysis of a was increased ten harm with sexual assault child consistent Almanza 1, 1987, Leg., (Tex.Crim.App. 70th years. See Act June 686 S.W.2d 157 R.S., 1, 3, 1984). §§ 1987 Tex. Gen Laws ch. So, agree prosecution 12 would appellant his for count be Because we with first review, ground after 1993. The limita- we the second and November dismiss again amended until grounds. tions statute third that, theory at trial It was State’s statute of limitations longer and longer. alleged the offenses occurred because (the years original three statute of

within trial, At S.P. testified she had lived limitations) of the 1985 amendments to the but, mother, with her until she was five limitations, statute of the offenses could be years old, regularly she visited her father. each carried forward under successive She episodes recounted several during to the 1997 limitations period amendment he, these visits which and sometimes his years eighteenth ten after the victim’s friends, sexually would assault her and birthday. January 2007 indict- take pornographic photos of her. The ear- just ment was filed weeks before S.P.’s episode liest such occurred when she was twenty-eighth birthday. when, two. The abuse subsided at age four, she moved to East Texas. dire, voir explained po-

At the State In her closing argument, prosecutor the jurors theory why prosecution of tential argued that occurring offense before appellant’s twenty-five-year-old of crimes September 1982, was barred the barred: limitations, statute of but those committed be, The law used to back when I started after that date would be barred be- this, get that if them we didn’t indicted cause changed.... “limitations [I]t years within five the after event oc- changed anything so after is not of curred that the statute limitations ran of limitations long charge and we couldn’t them. So that as the indictment was returned before it, report meant the kid had the inves- [S.P.] turned 28. And that was January tigation had and we place, to take had to the 26th of 2007.” Grand get Jury case to the within charge, his written the trial judge years happened five after it or they— instructed jury “the Court has they They get caught. walk. never judicial taken that the notice date in the And then it it switched where was ... indictment in this case was January years. get ten it investigat- We had to 10, 2007, and that the statute of limitations ed, it, report go the kid had to we had to for the charged offense the indictment is Jury, to the Grand we get and had to beyond not more than years ten the 18th charges years ten filed within after birthday Appellant of made [S.P.].” no ob- Well, the 18th birthday of victim. jection to the and did charge not otherwise math, ten, you do the plus get until raise a on complaint based limitations. they turn 28. jury appellant guilty found on all counts, him and sentenced to the maxi- Well, guess they this last fall what punishment mum each. did? There’s no statute of limitations anymore. appellant It’s we want On direct appeal argued, whenever to. for time, ... part why post And so that’s of the reason the first the ex provi- facto we like up end in situations this because sions of the and federal Texas constitu- legislature continued to tions were the applicable had make violated because years prosecution almost four after this Tex. Gen. Because Laws 2403. count was 1, 1997, September already was barred. Effective barred at the the amendment effective, aggravated limitations sexual became as- of years birthday sault was "ten from the 18th amendment violated the Ex Post Facto Clause. offenses, May alleged having the victim of the Act of All of the offense.” other oc- R.S., 1, 4, earlier, Leg., §§ 75th curred barred. ch. were also expired “passed limitations An ex law is one after period had before fаcto became effective. 1997 limitations statute the occurrence of a fact or commission of assumed, without de- appeals act, The court changes retrospectively which was not that the ex issue ciding, legal consequences or relations of such fact theo- with the State’s agreed forfeited or deed.”6 The United States and Texas charged were ry: Because the offenses constitutions both forbid ex (the years original within three committed Supreme laws.7 In set out limitations period) categories the four of ex laws in 1985, they took effect in amendment that v. Bull:8 Calder each suc- could be carried forward under Every 1st. law that makes an action cessive amendment law, passing done before the eigh- of ten after the victim’s years done, criminal; which was innocent when Appellant birthday.4 petitioned teenth punishes Every such law action.2d. review, his arguing that this Court for crime, aggravates makes extinguished by the run- offenses was, it greater than when committed.Bd. revived ning of and could not be limitations Every changes law punishment, of limita- by the version greater punishment, and than inflicts violating the Ex Post Facto tions without crime, the law com- annexed when of the federal and Texas con- Clause both Every mitted. 4th. law that alters the stitutions. evidence, less, legal of receives rules Court, candidly ad- Before the SPA different, testimony, than the law re- at trial mits the State mistaken quired the time of the commission of appeal agrees ap- on direct with offence, in order to the of- convict that the statute limitations had pellant these, laws, fender. All and similar are however, 1993.5 SPA argues, run The manifestly unjust and oppressive.9 object did appellant that because trial, bar at he cannot raise The Ex Facto applies Post Clause now. retroactive, are only facially laws that but also to laws that are retroac- applied II. tively. example, For v. Tex- Carmell Right Be Free A. “Absolute” as, a re- Supreme Court held that Application from the of Ex Post version Texas vised Code of Criminal Facto Laws. 38.07, Procedure Article which lessened categories. quantum to con- required four Calder Bull “the of evidence 10-07-00346-CR, Phillips v. No. ed.1990). Dictionary (6th 6. Black's Law 26, (Tex.App.-Waco Aug. WL at *2 2009) (not designated publication). U.S. §§ 1; art. cl. I, Const. cl. Tex. I, § art. Const. trial, ("All parties 5. SPA's Brief at 2-3 appeal, and the State and Tenth Court (1798). 8. 3 U.S. 3 Dali. L.Ed. 648 applicable believed statutes against appellant to the twelvе counts were Id. at 390-91. extended amendments to article successive 12.01 of the Texas Code of Criminal Proce- They dure. were not. the Tenth Because 10. 529 U.S. 146 L.Ed.2d proceeded mistakenly adopt argument, secondary is- State's the threshold addressed.”). preservation sue of must be vict,” “squarely” fell into the fourth Colder not facially retroactive —indeed it con- category v. Bull when that law applied tained standard savings clauses—this retroactively.11 The revised Article 38.07 Court held that to the de- authorized conviction of certain sexual of- fendant violated the Ex Post Facto Clause. alone, fenses on the victim’s testimony al- [Wjhen a statute explicitly restricts the though corroborating previ- evidence had consequences offense, collateral of an Thus, ously required.12 application of the defendant is rely entitled to on that the new law to Carmell—who had commit- restriction. Punishment for the offense ted offense before the law was enact- is increased the removal of the statu- ed—ran afoul of the constitutional prohibi- restriction, tory and such an increase in against tion though laws even punishment constitutes an ex law facially itself was not retroactive. law.18 State,13 Similаrly, Scott v. Presid Keller,

ing Judge Applying the writing for a Scott reasoning unanimous the con- court, held the Ex Post Facto text bar, Clause of a statute-of-limitations when a prohibited the use of a successfully com statute explicitly restricts the statute of pleted adjudication deferred to enhance limitations to a particular as, period—such ‍‌‌‌​​​‌​‌‌​​​​​‌​‌‌​​‌‌​‌‌‌​‌‌‌‌​‌‌‌​‌​​​​‌​​‌​‌‍the punishment for a later offense when case, in this a total of years ten de- —the permitting such an enhance fendant is entitled rely on that restric- ment “did not exist at the time adjudica tion. Once that expires, “there is tion was deferred.”14 The defendant had presumption irrebuttable that a defen- pled guilty in 1991 to indecency with a right dant’s to a fair trial preju- would be successfully child and completed his de punishment diced.” And for such a ferred-adjudication probation.15 At time-barred offense post constitutes an ex time, deferred-adjudication application of the law. facto provided that a successfully discharged right 2. The ap- to be free from the probation would not be considered a con plication post of ex facto laws is an viction for purposes of enhancement.16 In “absolute” 1997, one. Legislature amended the law to adjudication make deferred for a sex of The right to be free from post

fense ex prior count as a pur conviction for laws or poses post of the ex imposing an automatic life sen facto facto tence for a second of a sex-offense conviction.17 law is an “absolute” right first—a Although the statutory amendment category Marin right.20 It cannot be 530-31, Marion, 11. Id. at 120 S.Ct. 1620. 19. United States v. 404 U.S. 30 L.Ed.2d 468 517-19, 12. Id. at 120 S.Ct. 1620. 20. See Marin v. 851 S.W.2d (Tex.Crim.App.2001). 55 S.W.3d 593 (”[O]ur (Tex.Crim.App.1993) system may be thought to contain rules 14. Id. at of three distinct 597-98. (1) requirements prohibi kinds: absolute 15. Id. at 595. tions; (2) rights litigants of which must be implemented by system expressly unless 16. Id. waived; (3) rights litigants of which are implemented upon request.”), to be overruled 17. Id. at 595-96. grounds by on other Cain v. 18. Id. at 597-98. (Tex.Crim.App.1997). State,21 gratify In tent to or the sexual desire Ieppert waived or arouse forfeited. stated, prosecu- of We held that person.”23 we illegal tion when for conduct which not merely do prohibitions

ex not irregulari- committed was not forfeitable upon people a waivable or confer ty.24 we that the con- reaffirmed not to have their con- right forfeitable of laws prohibition stitutional ex Indeed, retroactively. penalized duct re- category-one, is a “absolute Marin prohibition against ex constitutional quirement” subject forfeiture that is really is not legislation object.25 failure to all. It is a right categorical individual prohibition people directed Application B. a New to Revive of Law government. their Short a constitu- Previously Time-Barred Prosecu- amendment, people may tional the Ex Post Facto tion Violates individually either prohibition, waive Clause. than collectively, any they may or more imprisoned consent be conduct reflect “a Statutes which does a crime.22 not constitute that, legislative judgment after a certain time, Thus, Ieppert, that a quantum we held defendant no evidence is sufficient judgment “typically raise That could a claim for first time on convict.”26 rests, appeal large part, upon evidentiary convictions were con his example, pas the Ex cerns—for concern that the Post Facto Clause because prosecuted sage he was eroded or made statute under which of time has memories yet had not enacted at the time of his witnesses or other evidence unavailable.”27 been allegedly Ieppert criminal conduct. had Because statutes of limitations are meas charged multiple policy “entirely subject with ures of public indictments aggravated Legislature,” they “may sexual assault of a under the will of the be child changed repealed violating fourteen. he of- without con When committed the fenses, against statutes stitutional applicable required prohibitions fac- any acquit of an new to laws where proof right element the statutes that case a absolutely has prosecuted require— acquired he was under did tal not been completion period that the committed in- limitations.”28 offenses be “with of (Tex.Crim.App.1995). 21. 908 S.W.2d 27. Id. 217 22. Id. at 220. State, 779, Vasquez 28. 557 781 n. 2 v. S.W.2d (op. (citing (Tex.Crim.App.1977) reh’g) J., (Baird, concurring). 23. State, 333, Hill S.W.2d v. 146 Tex.Crim. 171 (1943)). 880 The rationale for the rule Id. at 218. Judge perhaps explained by Learned best 359, v. 120 S.W.3d 365-66 Sanchez States, F.2d 420 Hand in Falter v. United 23 ("[W]e recognized have (Tex.Crim.App.2003) (2d 1928): Cir. requirements three more Ma- absolute since thing prosecu- Certainly it is one to revive a requirement rin: a a dis- constitutional that dead, already give and it a tion another to proceedings trict court must conduct its at the question longer of life. The turns lease seat, county prohibition the constitutional of upon much done to our how violence is laws, ex certain and constitutional justice feelings play. instinctive of and fair (in- judge.”) restraints on the comments of a has For the state to assure a man he quotation ternal marks and omit- footnotes pursuit, thereafter safe from its become ted). assurance, seems to most of withdraw its 615, But, Stogner California, us while 539 unfair dishonest. U.S. on, have it 544 it does not shock us to 156 L.Ed.2d chase is courts, like all state governments

And Texas federal began to enact legisla- issue, circuits that have ruled on the have tion lengthening the limitations periods for upheld constitutionality of extending prosecuting child cases.”30 abuse Texas is unexpired an criminal statute of no exception. limitat court appeals As the of Thus, may pointed case, ions.29 a of limitations out in this the statute of legislature, be extended but a pros limitations for certain sex offenses expand- ecution within time period the new will be ed from years years three to five to ten permitted only period years if 1997 limitations of ten not already years run before the law was after the victim’s 18th birthday. changed. years, legislatures In recent Now there is no statute of limitations.31 particularly have been amenable to But such the Texas Legislature did not and 1980s, early spurred extensions: “In the could not already “resurrect” cases barred growing with newly societal awareness of and these expanded limitations pe- abuse, sensitivity Indeed, both child federal and riods.32 each amendment stated set, or, ascertained; (D) beyond readily extended first if it continuous sexual does, forgives it. stake young abuse of child or children under Sec- 21.02, Code; Id. at (E) 425-26. tion indecency Penal with a 21.11, ...”). child under Penal Section Code (Tex. 29. Archer v. Grimes, Crim.App.1979); United States v. appellant recognize Both the State and (11th Cir.1998) (joining F.3d eight concerning that the applicability issue of holding other "extending circuits in legisla- the statute of limitations deals with a prosecution before application tive enactment and the of ex does not violate Ex Post Facto laws, judge-made application Clause”). judicially abrogated common law. See Tennessee, 451, 462, Rogers v. U.S. Frei, Note, Ryan Eclipse D. Case Does Time (2001) S.Ct. (holding 149 L.Ed.2d 697 Stogner Crime? and the Court’s California judicial the retroactive of a Determination the Ex Post Facto Limita- abolishing "year decision common law Justice, tions on Retroactive 38 U. Rich. L.Rev. day” and a rule was not 1011, 1012, (2004) ("Around time, violation because that constitutional clause legislatures began nationwide to realize that applies legislative acts—black letter law— frequently child victims оf sexual abuse re- judicial decisionmaking); not to Johnson v. reporting frain from their abuse to authorities States, 694, 699, United U.S. S.Ct. they easily manipulated by because are of- ("The (2000) 146 L.Ed.2d 727 heart of trust, positions authority fenders in Clause, Const., I, the Ex Post Facto U.S. Art. difficulty and because have children remem- 9,§ application changes bars a law 'that bering facing the the crime or trauma it can punishment, greater punish- the a and inflicts prose- cause. States that limited the time for ment, crime, than the law annexed to the cuting began signifi- child sex abuse cases to prevail when committed....” To on this sort cantly augment period filing time the for claim, post of ex Johnson must show (internal abuse.”) charges facto quotation after the challenges both operates that the law he ret- omitted). marks and footnotes (that roactively applies complet- to conduct enactment) ed ("no before its and that it raises the 31. Tex.Code Crim. Proc. art. 12.01 limita- penalty "(A) provided from law (B) whatever the when manslaughter; tion” for and murder acted.”); compare he 22.011(a)(2), sexual assault under Ortiz Section Pe- Code, (distinguishing (Tex.Crim.App.2002) aggravated nal or sexual assault under Code; 22.021(a)(1)(B), (C) application between the of ex laws Section Penal sex- facto assault, legislature judicial enacted and the during investigation ual if the of the including, biological decision-making jury offense matter is collected and error in a sub- jected testing charge, language testing to and statute that had been forensic DNA from a results show that amended after had the matter does not match the defendant committed offense). Ortiz, person identity capital-murder the victim or other whose In a case expired prosecution an had if the was apply to statute did not the revised that that offense one the victim’s re begun year if within prosecution offense before by limitations Supreme become Court police.38 The port statute.33 of the amended passage facially Stogner that this ret agreed with previously law that a roactive revived Supreme California,34 Stogner Ex offense violated the Post time-barred Ex clarified Court It noted that statute of Facto Clause.39 a criminal Post Facto Clause that a The Court held Califor unfair of a limitations limitations. was an extension of a authorizing prosecution nia statute a after the State had “assured man man for crimes “seventy-eight-year-old pur from its he has become safe рrosecu from been time-barred that had suit,” government that it a reflected an years was twenty-two for over tion both “to its own rules” refusing play law.”35 unconstitutional man warning” “fail* to a give for sex been indicted in 1998 Stogner had exculpatory evidence.41 preserve allegedly committed between offenses history Supreme pointed time, a At and 1973 California.36 legislators, noted that “numerous to sex period applied three-year courts, long and commentators have be- passed inBut California offenses.37 the Ex lieved it well settled Post for sex- allowing prosecution new statute a of a abuse the limitations Facto Clause forbids resurrection related child after 3930("(a) change underlying in law made this Act alleging the of retaliation offense harming threatening only or to harm another applies to an committed offense servant, public as a the trial for his "service" [September the effective date of this Act after mistakenly phrase judge section, "service 1, 2009], included purposes For of this jury public in his or status” as servant the effective date offense is committed before charge. The retaliation statute had any date, Act if the offense of this element of occurs date аnd amended between the offense (b) An offense committed before be- include a threat to harm another trial to gov- Act is the effective date of this before "status” well as his "service” cause of his by the law when the erned in effect offense public error did as a servant. Id. at 91. This committed, law is contin- was and the former application of constitute an ex purpose.”). in effect for that ued statute; charge simply the retaliation wrong because it relied on the "erroneous 2446, 156 34. 539 U.S. L.Ed.2d Id. But it did not version of the statute.” egregious harm because cause the defendant prospec- is little difference between "[t]here Frei, supra note Id. at tive witness' status and his service.” an ex 92. The situation would be Ortiz Stogner, 539 123 S.Ct. 2446. U.S. at retaliation violation under Johnson if the public protection of "a statute did not include the mur- at the Ortiz committed Id. at S.Ct. 2446. servant” der, alleged the State that the victim but public "a servant." 609, 123 38. Id. at S.Ct. 2446. offense, If, the did at the time of the statute public against "a not criminalize retaliation 610, 123 Id. at S.Ct. 2446. 39. servant,” any application then of that new before to conduct that had occurred statute 611, (citation at 123 ‍‌‌‌​​​‌​‌‌​​​​​‌​‌‌​​‌‌​‌‌‌​‌‌‌‌​‌‌‌​‌​​​​‌​​‌​‌‍2446 40. Id. S.Ct. viola- its enactment would be an ex omitted). quotation internal marks law. tion of the (citations 3, 2009, 33.Accord, quotation Leg., Id. and internal marks 41. Act of June 81st 1227, 42, omitted). R.S., § Tex. Gen. Laws ch. 2007

615 consistently prosecution.”42 distinguished The Court time-barred situations where decision, early periods v. expired.”45 cited an Texas State limitations have Sneed,43 Supreme which the Texas Shedd,46 People v. a Colorado case stated, Court one, to present similar the the defendant of the statute of

In this case the bar child, charged was with a sexual assault of year completed limitations of one to alleged Septem have occurred between into operation, the code went before 31, ber 1 and December 1977.47 At that period prose- which the of limitation of time, the statute of limitations was three ex- in such misdemeanors was cutions 1982, but years, legislature in having years. tended to two state period creased limitations for sexual within neglected prosecute to the time years. However, to ten offenses because action, for its lost the prescribed own of against statute limitations the defen prosecute suit. To an right give latest, already expired, dant had at the passed legislature, act of the after such 31,1980, December “the new stat ten-year loss, reviving right effect of of ute of limitations did revive the court’s state, give in the would it an action jurisdiction to hear the case.”48 As the operation post facto, which we cannot Supreme explained, Colorado suppose legislature intended.44 prosecution by A case barred a from 1860, Thus, early Texas of as courts held statute limitations cannot be revived application by subsequent that the of an otherwise valid legislation that acts extending of period. law limitations extend the limitations Retroac- already offense time-barred tive of a statute of limitations previously Ex Clause. The a prosecu- violated the Post Facto revive barred Stogner that “where tion violates the fundamental Court concluded constitu- prohibition upheld against courts have extensions of unex- tional ex post facto pired they of limitations ... have legislation.49 statutes 616, prosecution may 42. Id. at 123 S.Ct. 2446. that the be commenced any newly period, time within the established Sneed, Tex.Supp. 43. State v. 66 although period the old of has ex- limitation pired.”). Id. at 67. 1985) banc) (Colo. (en (per P.2d 46. 702 618, Stogner, 539 U.S. at 123 S.Ct. 2446. curiam). exception. Texas is no See Archer v. (Tex.Crim.App.1979) at 268. Id. (“complete defense" accrued under away by cannоt “be taken a limitations subse- amendment”; however, Id. quent repeal or stat- extending period “applies ute (citations omitted); all not barred at the time of the see offenses also Common- act, Rochelean, prosecution may passage so that a 404 Mass. wealth (1989); newly be within commenced N.E.2d United States Fraidin, (D.C.Md.1945) period, although F.Supp. the old established ("where expired”); has then Rose v. a statute extends a of limita- thereof, (Tex.App.-Dallas provides tolling tions S.W.2d or ref’d) ("Where pet. complete applies has to offenses not barred at the time of defense limitations, passage; but can- accrued it can- such a statute under statute of statute's away by subsequent repeal operate which were not be taken to revive offenses amendment; however, extending the at the since it a statute time of enactment facto”; post prose- in ex applies to all not such case be of limitations offenses would act, limitations). passage barred at the time of the so cution barred

616 favorably by forfeited this absolute limitations appellant cited decision was The Shedd in the trial by failing complain to bar it is Stogner,50 in Supreme court. present сase. analogous to precisely Appellant’s post issue ex facto was

III. forfeited. Applying the 1997 Version A. appellant argues The SPA Revive a of Limitations Statute appeal for preserve complaint his failed Previously Prosecu- Time-Barred ex his issue not a true because was Facto the Ex Post tion Violates raised for first issue could be Clause. and that appeal Ieppert time on under Appellant’s facto claim is true because statutes of are argument not “structural.”53 That mixes valid. rights” oranges. with “Structural apples of limita Although 1997 statute rights to are those which constitutional an ex tions amendment if apply: harmless-error rule does not face, at as was the one issue law on right shows that the violat defendant application a situation in Stogner, its ed, appellate courts must reverse con had al which the statute of limitations any analysis viction without of whether ready run before its enactment violates “Categorical error was harmful.54 provision. Stog As in that constitutional requirements are those rights” “absolute ner, the 1997 version falls rights which are prohibitions, like category v. into the Calder Bull second only, to be waivable are observed [that] appellant’s prosecution.51 applied But partisan request. even without unlike limi ten-year extended statute of properly lawfully rights, they waivable can’t be and, 1993, expired from that tations even with consent.”55 In partisan avoided forward, prosecution all day twelve a Ieppert, explicitly we held that defendant absolutely barred. counts was forever and raise the a statute of limita could claim of constitutionally could No new statute ever appeal for the tions bar first be them.52 The SPA does not now a “categorical prohibition” resurrect cause it was Instead, may claims which not be waived or forfeited argue otherwise. she 616-19, 618, Stogner, Stogner, at 123 at 123 S.Ct. 52. See 539 U.S. S.Ct. 50. See U.S. 2446; Sneed, Tex.Supp. v. State 612-13, Stogner, 539 123 S.Ct. 51. See U.S. (citing v. 53. State’s Brief at 7 Johnson United (stating that California the retroactive States, 468-69, 520 U.S. Bull ex law fell into second Calder v. (1997) (listing rights L.Ed.2d 718 those category any aggravates "law that a — Court)). Supreme deemed structural crime, was, greater it or makes than it when Johnson, 468-69, because, 54. See 520 U.S. S.Ct. original after the stat- committed” — Stogner expired, limitations law had ute of any punishment”; "Califor- was not "liable State, (Tex. v. 55. Marin ‘aggravated’ Stog- new statute nia’s therefore grounds by Crim.App.1993), other overruled on сrime, alleged ‘greater than or made it it ner's (Tex.Crim.App. 947 S.W.2d 262 Cain that, was, committed,' when the sense however, case, 1997). post-Marin we that, punishment' to the extent 'inflicted may estopped party that a be from have noted (when past the new law criminal conduct that relying upon "category one” absolute re enacted) trigger any did not such liabili- quirement. S.W.3d Sanchez omitted). (some quotation ty.”) internal marks (Tex.Crim.App.2003).

617 stated, we object.56 failure to As statute-of-limitations defense if he not does only not of the indi- bar is benefit assert it at or guilt before the stage defendant, intended to keep vidual it is trial.62 We declared that “a limitations government’s promise sacred defense” is a third-category Marin rule citizens.57 that must be implemented only upon re- quest.63 governs But Proctor statute-of- another, subtle,

The SPA has more ar- that defenses are based on gument: This is not an claim facts ex facto Stogner, (challenging pleading a under and therefore could not that a includes appeal, be raised for the first time on “tolling paragraph,” “explanatory aver- a Stogner ments,” because law that overt- involved or even allegations,” “innuendo ly “permitted] resurrection otherwise that suffice tо show that the of- charged prosecutions,” time-barred criminal not, fense is at least on the face of the overtly this case involves no such retroac- indictment, by limitations), barred is, nothing in tive law.58 That the 1997 pure law (challenging an indictment that expressly permitted the resurrec- shows on prosecution its face that is abso- previously prosecution; tion of a barred limitations). lutely barred the statute of indeed, the just statute itself states the The pleading gives rise to a limita- opposite. This distinction irrelevant be- tions factual reparable. defense is cause result is the same— pleading gives rise to a statute-of- retroactive here application “revived” a limitations bar is not. first is forfeit- And, previously prosecution.59 in ed unless raised or during before the trial Carmell, the Supreme held that the pretrial cannot be raised a writ. retroactive of statutes that are The second—a true ex viola- expressly facially retroactive none- tion—is not Ieppert. forfeitable under We theless violates the Ex Post Facto stated, case, have a post-Proctor a Clause.60 may limitations bar be raised in a pretrial apply. 3. Proctor v. State does not dismiss, writ, motion quash а pretrial trial, notes, State,61 at appeal, the SPA v. direct or in a As Proctor collateral proceeding.64 we held that a will forfeit the pleading, defendant a on its “[I]f (Tex. Ieppert 220 908 S.W.2d Id. at 844. Crim.App.1995); Saldano v. see also 70 (cit (Tex.Crim.App.2002) ("It S.W.3d 888-89 defendant, us a seems to hav- ing Ieppert proposition for the that one Marin ing given the statute of limitations as requirement” defense, nonforfeitable "absolute is the ought asserting the burden to have it, prohibition constitutional of ex losing just that defense or as he would laws). plac- other defense.... We also conclude that ing category limitations in the second Marin equally 57. Id. inappropriate. important However might the statute of limitations be to a defen- case, Stogner, given dant in (quoting hardly 58. SPA's Brief at 5-6 the statute can be 2446). at proper deemed U.S. S.Ct. 'fundamental function- Indeed, ing system.’ adjudicatory of our at Sneed, 67; Shedd, common law there was no limitation as to the Tex.Supp. 59. See 268; Fraidin, prosecut- time within F.Supp. which offenses could be P.2d at 276. ed.”). Texas, 513, 530-31, U.S. Carmell Smith, S.Ct. parte L.Ed.2d 64. Ex 801-02 ("A (Tex.Crim.App.2005) pretrial writ of ha- used, however, (Tex.Crim.App.1998). corpus may 61. 967 S.W.2d 840 beas chai- be concerning law waiver a limitations face, charged offense is the shows of limitations, it is by appropri- then is in- barred as an affirmative defense grant- Rather, relief be corpus ate that habeas proper question applicable. the ed.” length- the is whether amended statute applied the limitations was ening the The between factual stat distinction provision, to a constitutional contrary legal and “defense” the ute of limitations Clause, i.e., we Ex Post and the Facto Kansas Supreme the explained by bar was have that it was.68 held case, In that in State v. Court Garcia.66 raised, for the first time on the defendant violated prosecution the of Garcia Because claim the ret Stogner-based appeal, Clause, Facto his conviction the Ex Post a new statute to application roactive of required was same is reversed. prosecution rape his for revive time-barred is here. inapplicable this Proctor case. Re the Facto Clause.67 violated Ex Post Sneed, and Stogner, Ieppert control that the jecting the claim defendant State’s reasons, case like it. these and others For of waived claim related statute of judgment the of the court we reverse raise it in the trial failing trial appeals remand this case to the cоurt, the stated that the Kansas Court dismissing an the court to enter order muddy By arguments State’s issue. indictment. charge filed rape KELLER, P.J., dissenting filed a January against in late Garcia opinion in KEASLER and which already of been HERVEY, JJ., joined. legislature year extended testing-to his 2003 DNA August after MEYERS, J., not participate. did Accordingly, August proper P.J., KELLER, dissenting in which he question ‍‌‌‌​​​‌​‌‌​​​​​‌​‌‌​​‌‌​‌‌‌​‌‌‌‌​‌‌‌​‌​​​​‌​​‌​‌‍being is not whether KEASLER, HERVEY, JJ., joined. of the statute of limi- prosecuted outside appears misunderstand statute, the amended he tations. Under prohibition. nature of the ex clearly period; fell within the limitations therefore, legislature passed Because the has the statute of limitations de- him, law, there no ex fense was not available and case has been jurisdiction lenge the court face of if the Id. at 1075. any prosecution of the indictment shows that barred This is limitations. (emphasis supplied). The Gar- Id. at 1076 irrepara- because the defect is incurable and concluded, cia court "Had the constitutional prose- an absolute bar to ble. Limitations is raised, previously issue Garcia would wasting point There scarce cution. is no likely prosecuted rape have been for the judicial putting and societal resources charge, which resulted in a convictiоn and inconvenience, expense, great defendant imprison- attendant sentence 408 months' anxiety if ultimate result never in ment to his for felo- consecutive life sentence (footnotes omitted). question.”) Therefore, ny that at a murder. we conclude minimum, consideration of the issue is neces- Tamez, (Tex. parte 65. Ex sary justice pre- the ends of and to to serve Crim.App.2001); Tita v. see also light rights. (distin vent of fundamental a denial (Tex.Crim.App.2008) S.W.3d holding application of the amend- guishing our between a statute of limitations de proof upon previously fense that factual under ment time- relies to revive Garcia’s irreparable ap Proctor and an bar under the rape the Ex prosecution violated limitations). plicable Clause, statute of reversed.” Post Facto conviction is Kan. 66. 285 169 P.3d 1069 violation in And erroneous this case. because retroactive of a stat- ute, failed to raise his statute-of-limi- appellant but only if the statute itself has retro- trial, he has

tations defense forfeited his active effect.”7 Although the retroactive complaint. of a statute the judiciary may implicate process, process due “due Only Legislature A. Can Commit does not incorporate аll of the post ex facto an Ex Post Facto Violation clause’s In finding that “the strictures.”8 Constitution pro- United States protections coextensive,” are not the Su- pass any “No state shall ... ... ex vides: preme Court has “pointed ‘important 1 facto post Law.” The Texas Constitution institutional and contextual differences be- ... provides: post “No ex facto law ... legislating, hand, tween one and Thus, something shall be made.”2 can be common law decisionmaking, on the oth- “law,” post facto” is a only “ex if it and the ”9 er.’ And in a statute-of-limitations con- language in the United States Constitution text, we specifically recognized have that specifies purposes that a “law” for these is the Ex Post Facto “is a Clause limitation something “passed.” that is upon the powers legislatures of state and State, explained: In Ortiz v. we “In both not state Contrary to the courts.”10 provisions, language directed the Court’s contention that this is a “subtle” not the courts.”3 And legislature, though legis- distinction between argument,11 upon Ieppert the Court now relies v. lative action judicial decision-making is explained we that Ortiz “[i]n crucial. State,4 Ieppert appear we not did The Court’s attempt distinguish Ortiz appreciate the Under Su distinctiоn.”5 internally inconsistent. The Court preme precedent, explained, we first “the acknowledges post apply ex clause not the insertion of does facto Specifically, post jury “an ex words “or in the charge status” facto judiciary.”6 error, problem jury does not arise from a trial mere charge though court’s even I, Ortiz, 10, § U.S. cl. (citing Rogers 1. Const. art. 1. 93 91 6. S.W.3d at Tennessee, 451, 532 121 S.Ct. U.S. 149 I, § 2. Tex. Const. art. (2001)). L.Ed.2d 697 (Tex.Crim.App.2002). States, (citing 7. Id. United Johnson v. 529 U.S. (2000) (Tex.Crim.App.1995). S.Ct. 146 L.Ed.2d 727 4. 908 S.W.2d 217 summarizing holding following in a Ortiz, event, Iep 93 S.W.3d at 91. parenthetical new as: "because statute did only post pert addressed whether ex facto apply retroactively, post ques- not no ex facto forfeitable; claims were it did not address arises; only question tion is whether the old whether the defendant’s statute-of-limitations action”). statute authorized the trial court’s claim, true, if an would establish ex facto Ieppert, violation. See 908 S.W.2d at 218 457-62, (citing Rogers, Id. U.S. at ("The Appeals Court of did not reach the 1693). S.Ct. claim, "holding merits of" the ex appellant right instead that forfeited (quoting Rogers, 532 U.S. at complain appeal of it on because he did not 1693). S.Ct. court.”), (holding raise it in first the trial prohibitions merely "ex do not (Tex. 10. Proctor v. S.W.2d upon people confer waivable or forfeita- Crim.App.1998). right penalized have conduct ble their retroactively” remanding proceedings opinion). op. consistent with the 11. See Court’s at 617. 530-31, sup- in a later version of 1620 Carmell “or status” were words anything I do not those port, version of the but see but in the at- proposition pages the offense that stands for in effect at the time I am unable says by the Court.17 And the Court tributed was committed.12 But says any passage in violation if to find Carmell would be status,” extraneous of “or this.18 instead public

words were “a servant.” changed at issue the The law in Carmell simply interpretation is at Court’s Ortiz necessary support to of evidence quantum express language the and hold- odds with sexual offenses— a conviction certain in that case. ing conviction on uncorroborated permitting cor- charge testimony in some which jury The that a situations Court claims previously required.19 “a erroneously public the words roboration containing savings provi- viola- The statute contained no post would be “an ex servant” facto sion,20 applicable it was to case that But the so tion under Johnson.”13 Court’s terms, subsequent ef- met its which included parenthetical quote own from Johnson regardless of whether the offenses fectively refutes the contention: trials Court’s the рost on this of ex were committed before or after statu- prevail “To sort facto claim, tory change.21 ... that the law Johnson must show (that retroactively challenges operates he also contends that Scott v. Court applies completed to conduct before its holding involved a that an ex State22 enactment).”14 is violation occurs when a statute facto retro- “facially applied v. Tex- retroactive” but is

The Court contends that Carmell “application” actively. the a new law The Court is mistaken. Scott as15found the at issue prohibition run afoul of the ex held that enhancement statute facially Although retroactive.23 though “even law itself was pages savings clause retroactive.”16 The cites contained “standard” 1993, 200, § Leg., 1 op. Court's at n. 32. 20. See Acts 73rd ch. & 12. 613-14 Leg., passim; Acts 73rd ch. passim. § & 12.01 13. Carmell, at 120 21. See 529 U.S. S.Ct. Johnson, (quoting id. 529 U.S. at See (“Under the 1620 law in effect at the 1795) added). (emphasis 120 S.Ct. committed, prosecution’s were case acts legally petitioner was en- insufficient and judgment acquittal, unless titled to a 15. 529 U.S. 146 L.Ed.2d produce State could both the victim's testimo- ny law, The amended and corroborative evidence. however, changed quantum of evi- 611; op. op. at Court’s see also Court’s at conviсtion; necessary to un- dence sustain law, (and petitioner the new could be der was) testimony victim's convicted on the Carmell, 530-31, 17. See at U.S. S.Ct. alone, evidence.”). any corroborating without (Tex.Crim.App.2001). 22. 55 S.W.3d id., passim. 18. See 596-98; specifically see id. Id. at ("We Legislature conclude that the intended Carmell, 516-18, 19. See U.S. S.Ct. permit the use of deferred for enhancement (addressing changes adjudications to Tex.Code Crim. that were assessed before the 38.07). provision.”). of the enhancement Proc. art. enactment enhancements, the have savings standard drafted a applicable special clause for savings sufficient for clause was not ex the special with situation which it was purposes because enhance- confronted, but it not do did so. not a enhancement.24 ment was standard present Court claims that the case Ordinarily, creating a law an enhancement Scott, analogous but it is not. prior conviction not violate the does Ex Scott, it was provision the enhancement long Post Facto Clause so as the law was retroactive; itself that was the trial court place before the commission of the new made no construing mistake in the mean- prior for which conviсtion offense ing provision. of that As will be discussed enhance, being even though used to later, the statute at issue in present prior may predate conviction the enhance- savings case provision contained a provision.25 ment tailored No ex viola- for the tion occurs that situation because statute-of-limitations context that “punish[es] enhancement the new offense prevented the from having statute uncon- than prior rather the conviction.”26 But stitutionally reach. retroactive provision the enhancement issue in Scott suggests Court that its holding is previously explicit modified what was an supported by six statute-of-limitations by that a assurance statute defendant cases that found ex violations.29 on placed adjudication deferred would not First, the Stogner Court cites subject Califor- “disqualifications be or disabili- nia for the that proposition the Ex Post completed if he successfully ties” his de- Facto Clause forbids the resurrection of a adjudication.27 The legislature ferred prosecution.31 case, time-barred In that statutory modify could assurance for the expressly California statute authorized people who would be on placed deferred the prosecu- resurrection of a time-barred future, adjudication in the but it could not tion.32 The Supreme Court’s statement modify people that assurance for who had the “Ex Post Facto Clause placed adjudication on forbids deferred resurrection past.28 prosecution” of a time-barred prevent the To the enhancement unconstitutionally statute from introduced a about the having ret- discussion Recon- reach, then, legislature Congress’s rejection roactive the should struction of a bill that Falter, ("In Id. at 24. 596-98. tive reach. F.2d at No vember, 1921, proviso by the was added period years 25. Id. at which 596. the was extended to six involving defrauding the case of ‘offenses attempts Id. or the United defraud States or thereof, any agency by conspiracy whether application § at 596-98. not.’ 18 USCA proviso being bar clear case at its from sentence, argue 28. See id. last the defendants that the legislation. amendment is ex Per directly suggest haps they The Court right, does not that its would be if the earlier statute favor.”) holding Judge supported (emphasis is Learned Hand’s once run in their add States, ed). opinion in Falter v. 23 F.2d United (2nd Cir.1928), Falter but it cites for the "ra legislature tionale” for the rule that cannot 539 U.S. S.Ct. L.Ed.2d retroactively extend a limitatiоns already by an offense that is limita op. See op. tions. Court’s at 612-13 n. 28. But 31. Court's at 614-15. Judge addressing Learned hand a statuto was that, terms, ry amendment its had retroac 32. 539 U.S. at S.Ct. 2446. may suggest- In The Sneed have been para- so.33 the next court have done would referred to Supreme ing Court that it the new graph, construing holding Supreme violation, Courts State narrowly avoid a constitutional prosecutions time-barred reviving “laws grounded a common of construction rule concluding are ex legislature presumption facto.”34 Supreme stated: paragraph, Court with the comply intended the law to consti- a law after conclude that enacted “We tution.39 did not hold that an But Sneed applicable limita- previously of a expiration arise violation could from a violates the Ex Facto tions Post trial of a stat- court’s erroneous applied previ- when it is revive a Clause did, ute. Even if it Ortiz decision prosecution.”35 Though ously time-barred far would more control because Ortiz “ap- used the word Supreme Court recent, Court, and contains a from sentence, it plied” clearly in this talk- specific more discussion re- extensive ing being an Ex Post Facto violation about garding the issue at hand. itself, (erro- “law” an caused Third, upon People relies neous) law. application of the Shedd,40 Supreme Court case.41 Colorado upon also relies State v. The Court case, In that raised a defendant stat Sneed,36 early Supreme Court of Texas trial, ute-of-limitations claim at brief, opinion decision.37 The Sneed trial court dismissed the case on that bas the in quoted opinion has Court decision, the Affirming is.42 Colora entirety. the read- For convenience of Supreme do stated: Court “Retroactive er, below: I set it out application of a statute of limitations to In this case the bar of the statute of revive a previously prosecution vio year completed limitations of one was prohi lates the constitutional fundamental by the code went into operation, before against legislation.”43 bition post ex facto period prose- which the of limitation of say Significantly, the court did not that the in ex- cutions such misdemeanors was post defendant an ex viola suffered years. having to two tended state facto tion, nor hold did the court even that the neglected prosecute within the time at in that case violated the ex issue action, prescribed for its own lost the post clause.44 It did not have to. right prosecute give the suit. an To facto timely Because the raised a lim defendant passed legislature, act of the after such claim, itations it was either true that the loss, reviving right the effect of state, retroactively statute did not extend limita give action in the it an would tions for facto, prosecution per a time-barred operation post ex which we cannot — suppose legislature haps by narrowly intended.38 construed to being avoid 329-30, 33. at 123 S.Ct. 2446. 39. See Id. Lebo (Tex.Crim.App.2002). n. 22 (emphasis 34. Id. at ‍‌‌‌​​​‌​‌‌​​​​​‌​‌‌​​‌‌​‌‌‌​‌‌‌‌​‌‌‌​‌​​​​‌​​‌​‌‍add- 1985). ed). (Colo. 40. P.2d 267 632-33, 35. op. Id. at 123 S.Ct. 2446. 41. at 615. Court's Shedd, Tex.Supp. 702 P.2d op. at 614-15. Court's 38.Sneed, Tex.Supp. at 67. 44. See id. Thus, it post operate recognized ex violation—or did Fraidin that it was the facto manner, operation with such of the statute that in such retroactive mattered un event, der the being prohibi under the ex clause. In

extension invalid facto ex laws. Rocheleau and were against tion What is Fraidin both decided facto before the Supreme is that the court rec United States significant Colorado Court prohibition Rogers that the decisions in ognized upon Johnson which against “legislation.”45 directed But our Ortiz relied. decision if the Colorado decision did stand for even Finally, upon relies Court State v. Court, proposition byit cited for Garcia,52 a Supreme Kansas Court case.53 Supreme States preceded United The Court that the contends case stands Rogers decisions Johnson Court for the proposition a defendant cannot which our relied. upon Ortiz decision waive an ex post claim in the limita context, footnote, In a cites Common tions but the Court Court overlooks the Rocheleau,46 wealth a Massachusetts Su fact that the court sharp Kansas drew a decision, prosecution and United States v. distinction between a preme Fraidin,47 opinion.48 court outside the federal district limitations and a case in The Rocheleau held that indict which the decision of limitations was retro actively ments were barred extended because statute: prosecution limitations for a time-barred arguments muddy State’s the issue. legislatively cannot be extended.49 How By rape charge the time the was filed ” ever, the appear words “ex against January Garcia late opini nowhere the Massachusetts court’s statute of already had been quotation on.50 And the Court’s own from legislature year extended to 1 opinion the Fraidin odds with the after his 2003 DNA August testing-to contention: The federal district August Court’s Accordingly, 2004. the proper said, a court such statute cannot question “[B]ut is not whether he was being operate to revive offenses which were prosecuted of the outside statute of limi- statute, barred at the time of enactment since it tations. Under the amended he in such ex clearly would case be facto.”51 peri- within limitations fell 45.Analysis July may of the statute Colorado be mitted or after 1979.” See Hol land, complicated by aspects some unusual of the 708 P.2d at 120. Originally, in case. sex offenses Colorado years. period had a limitations of three See (1989). 46. 404 Mass. N.E.2d 1333 Holland, (Colo. People v. 708 P.2d 1985). in For sex offenses which the victim (D.C.Md.1945). F.Supp. 47. 63 years age, was a child under of fifteen provided: period 1982 amendment "The op. 48. 49. Court's at 615 n. during may person prosecut which be a ed shall be extended an additional seven Rocheleau, 130-31, 49. at 404 Mass. years....” savings See id. at 119 n. 2. No N.E.2d 1334. provision was the time the enacted at amend passed, purporting provision ment was abut id., passim. See express legislature’s intent was enact provi ined 1985. See id. at 120. The intent Fraidin, (emphasis F.Supp. at 276 add- way comply was framed in a as to sion such ed). Stogner: expressed with the rule latеr assembly general "The intent of the in enact 285 Kan. (7) 169 P.3d 16-5-401(6) ing section in 1982 was ten-year a to create statute of limitations as specified op. offenses Court's said subsections com a case in od; case is no different than therefore, limitations This the statute of simply has him, limitations which was not available defense complied It is no different not been with. of a limita- concerning law waiver case limita- a in which the statute of from case defense is period tions as an affirmative years, always been five and has tions is Rather, ques- inapplicable. proper years, charging but the instrument five statute is whether the amended tion years returned after seven was not until lengthening limitations was (with tolling present). no circumstances contrary pro- a constitutional applied statutes, appellant’s applicable Under vision, i.e., Clause, Facto Ex Post time-barred, the trial and all of case and we have that it was.54 held in be- simply were mistaken participants shows, the above the defendant passage As It how lieving otherwise. not matter does of limita- in the Kansas case had no statute amend- the statute of limitations was later new statute ex- tions defense because the ed, apply later if those amendments do Kan- limitations. The tended Those amend- appellant. inapplicable be very court found that fact to sas plain magically ments cannot convert prosecution’s arguments reason the waiver statute-of-limitations claim into an vanilla unavailing. were violation. Legislature B. The Did Not Commit Limitations Defense Was Forfeited C. an Ex Post Facto Violation question appellant now whether claim plain-vanilla can raise his The 1997 amendments time on In Proctor v. appeal. for the first savings following statute contained the we held of limitations prevented the statute from provision if a defense that forfeited defendant contrary Stog- operating to the dictates of to raise it at trial.56 he failed before or ner: contends that Proctor is distin- The Court change the law made Act governs a statute-of-limita- guishable if apply prose- does not to an offense only if facts rather tions defense it involves cution offense became law.”57 contention “pure than The Court’s limitation effective date of before the given with the in Proc- is at odds reasons prosecution this Act. The of that offense the holding for defense to be forfeita- tor barred this Act though remains as treating gave Several reasons we for ble. not taken effect.55 as forfeita- a statute-of-limitations defense (1) savings prevented So the provision has little to do ble were: “limitations appel- applying 1997 amendments from crim- function of the truth-finding with (2) lant’s sex offenses that became barred in justice system,” inal “a defendant parties 1993. The the trial court were make a to waive might calculated decision simply believing mistaken in that the 1997 when is about to the defense applied. gain plea bargain- did legislature not run in order time for (3) might “a want to pass ing,” an ex law. defendant added). Leg., ch. (emphasis 54. Id. at 1076 See Acts 80th sion. 4.01(c). § 740, § Leg., 55. Acts 75th Ch. 3. The 56. 967 S.W.2d again changed pe- 2007 amendments that riod of offenses contained limitations for sex op. savings provi- at 617. identically an almost worded 57. Court's in forego the limitations defense order to cites Ex parte Smith for the vindicate name in the face of a good his proposition a that bar may limitations be charge.”58 publicly known All serious raised “in pretrial quash a motion or apply equally of these reasons situations dismiss, writ, trial, a pretrial on direct which an in offense barred limitations appeal, a or in proceeding.”64 collaterаl a matter of law. Contrary contention, to the Court’s Smith (non- say a Relying cases that upon say did not may be raised reparable) may limitations bar be raised for the first time on appeal,65 and the pretrial proceedings,59 habeas the Court proceeding” “collateral to which Smith ap- this somehow means that claims a parently referred was a pretrial habeas (non-reparable) may limitations bar be request for bail.66And Smith did not nec- for appeal. raised the first time on But essarily approve the in the holding bail necessary there is no connection between case. simply The Court stated that this Indeed, the two facial concepts. con- past pleading decision found the to be “so stitutionality aof statute that defines the fundamentally defective that the trial court may challenged in a pretrial offense be jurisdiction does not have and habeas re- proceeding,60 habeas but a claim such can- lief granted,” should be but the Court then be appeal.61 raised for the first time on footnote, supplied, in a a see” “but cite to The Court claims that Tita v. State distin- Moreover, case, Proctor.67 the bail Ex proof between factual under guished Proc- Dickerson, bar, parte irreparable tor and an but Proctor was a 1977 decision that distinguished on the basis that predated both Proctor legislative and the Code Criminal Procedure contains a imposed pretrial amendments that ob- requirement indictment reflect on jection requirement challenging for a de- prosecution its face that fect in the indictment. Unfortunately appel- limitations.62 for Further, Posey we held that lant, the Code of Criminal Procedure also request a failure to means that defense provides that a defendant forfeits error if the defense is not “law applicable he fails to before a object trial to defect of form substance case” indictment.63 and thus cannot be basis for a (Tex.Crim. possibility I add to list the Tita S.W.3d foregoing App.2008) (citing part a limitations could defense be Tex.Code Crim. Proc. art. 21.02(6) ("The plea involving agreement multiple must be mentioned some charges. example, presentment date For a defendant anterior to of the accused indict ment, capital might prosecution forego and not so remote that murder limitation.”)). exchange offense is barred defenses for lesser offenses in penalty. State’s waiver death 1.14(b); 63. Tex.Cоde Crim. Proc. art. Studer v. 1990). (Tex.Crim.App. 799 S.W.2d 263 Smith, parte 59. Ex 801-02 Tamez, (Tex.Crim.App.2005); parte Ex 38 Smith, op. (citing Court’s 617 178 (Tex.Crim.App.2001). S.W.3d 801-02). S.W.3d at Ellis, (Tex. parte 60. Ex S.W.3d Smith, passim. 178 S.W.3d at ("Pretrial Crim.App.2010) can habeas be used bring challenge a facial to the constitution Dickerson, (citing parte See id. at 802 Ex offense.”). ality of the statute that defines 1977)); 202 (Tex.Crim.App. S.W.2d See Dickerson, supra. (Tex. 61. Karenev v. S.W.3d Smith, Crim.App.2009). S.W.3d at 802 & n. 19. I believe a sub- jury-charge complaint.68 raised a suffi- defense could be

stantive point pri- without a ciency-of-the evidence proves if objection the evidence as a of law.69 But statute defense matter a substantive defense. of limitations not It is contained in the Code Criminal Procedure, Code, not it does the Penal liability at the negate criminal time the Instead,

conduct was committed. defense, an procedural limitations is a Thus, legislature.70 grace” by “act of entirety, be forfeited in its and it it can forfeited in case.71 respectfully I dissent.

Gary Lyn BLACK, Appellant, of Texas. STATE

No. PD-1551-10. Appeals of Criminal Texas.

Feb. mean, however, appel- (Tex.Crim.App.1998). 68. 966 S.W.2d ‍‌‌‌​​​‌​‌‌​​​​​‌​‌‌​​‌‌​‌‌‌​‌‌‌‌​‌‌‌​‌​​​​‌​​‌​‌‍71.That does any possible remedy. appel- lant If is without knowingly forgo lant the defense and Wright did not 69. See 203- (Keller, J., strategy failing (Tex.Crim.App.1998) attorney his had no dissent- valid it, ing). appellant may well have then raise valid claim of ineffective assistance coun- Proctor, 967 sel. S.W.2d at

Case Details

Case Name: Phillips, William Ray

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 15, 2011

Citation: 362 S.W.3d 606

Docket Number: PD-1402-09

Court Abbreviation: Tex. Crim. App.