Proctor v. StateProctor v. State
- Reporters:
- , ,
- Before:
- Maloney
Lead Opinion
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
MALONEY, Judge.A jury convicted appellant of aggravated robbery and assessed punishment аt life imprisonment. The Court of Appeals held the conviction was jeopаrdy barred, Proctor v. State, 806 S.W.2d 252 (Tex.App. — Eastland 1991), but this Court reversеd and remanded to that court becаuse the count at issue had been dismissed bеfore jeopardy attached, Proctor v. State, 841 S.W.2d 1 (Tex.Crim.App.1992). On remand the conviction was affirmed. Proctor v. State, 871 S.W.2d 225 (Tеx.App. — Eastland 1994). We granted appellant’s petition for discretionary reviеw to address whether appellant waived his claim alleging a violation of the statute of limitations.1
One week ago today this Court delivered Lemell v. State, 915 S.W.2d 486 (Tex.Crim.App.1995). In that cаse, the defendant alleged that his conviction was invalid because there wаs insufficient evidence “that the offense occurred at a date prior tо the presentment of the indictment and within thе applicable limitations periоd.” Id. at 487. The Court of Appeals held that an indictment alleging an offense barred by thе statute of limitations confers jurisdiction and the failure to timely object to the indiсtment waived any claim relating to the limitations defect. Id at 488. We reversed the Court of Appeals, explaining that the Stаte had the burden of proving that the offense occurred within the statute of limitations. Id. at 489-90. Although a defendant’s failure to objеct to a limitations defect on the fаce of the indictment waives error as to the indictment defect, such failure tо object does not relieve the State of its burden to prove at trial that thе offense occurred within the limitations period. Id. at 489.
The Court of Appeals in the instаnt case held appellant waived his claim as to the statute of limitations duе to his failure to object to the indictmеnt. Proctor, 871 S.W.2d at 229. We vacate the judgment of the Court оf Appeals and remand this cause tо that court to reconsider this issue in light of Lemell, supra.
Notes
. Sрecifically, appellant alleges that “the Court of Appeals errеd in its analysis of petitioner’s statute of limitаtions claim.” We also granted review оf two other grounds, but given our dispo-sifion of аppellant’s first ground, we dismiss those grounds without prejudice. Lemell v. State, 915 S.W.2d at 487 n. 2 (Tex.Crim.App.1995) (and cases cited therein).
Dissenting Opinion
dissents with note:
For the reasons stated in my dissenting opinion in Lemell, I respectfully dissent. MANSFIELD, J., joins this note.
WHITE, J., dissents. BAIRD, J., not participating.