State v. Yount

presenta- dence hindered defense s counsel jury.

tion of his case to the preparation

Because defense counsel’s presentation adversely of his case was

affected the non-disclosure of East and evidence,

Stroud’s weakly supported the instant case was victim,

on the issue of who killed the occurred, killing

when that we hold that

the failure to disclose this favorable evi probability

dence created a sufficient to

undermine the confidence in the outcome of

the instant trial. Thomas v. Applicant’s right at 407. to due

process, by of the Due virtue Process Amendment,

Clause of the Fourteenth

violated the non-disclosure of this evi Applicant’s allegation

dence. 115th is sust

ained.5 of the trial court is vacat- applicant

ed and the is remanded to the

custody County of the Smith Sheriff to

answer indictment.

MALONEY, J., participating. Texas, Appellant,

The STATE of YOUNT, Wayne Appellee.

Ronald

No. 093-92. Texas, Court of Criminal III, Speers, Atty., Peter C. Dist. Kath- En Banc. Conroe, Hamilton, Atty., leen A. Asst. Dist. appellant. 24, 1993. Feb. Ball, Jr., Montgomery, appel- David

Rehearing May Denied lee. Austin, Huttash, Atty.,

Robert State’s for the State. granted applicant we have relief tion that the failure to disclose the evidence of

5. Because deprivation right deprived of his to due East and Stroud him of effective assis- based allega- process, there is no need to answer his tance of counsel. reasoned that “it would have been abuse FOE ON STATE’S MOTION OPINION simply AFTER PETITION of discretion the trial court to EEHEARING for unambiguous REVIEW disregard FOR DISCRETIONARY the lan clear Yount, REFUSED guage of Gallardo.” State appeals at 254. The court of con S.W.2d CAMPBELL, Judge. finding the analysis by cluded its trial Yount, Wayne in Appellee, Ronald was submitting charge the court had erred in separate offenses of invol dicted for three offense, had “cor on the time-barred untary manslaughter. See Tex.Penal Code setting aside by rected its own error the appellee’s request, the trial Upon 19.05. judgment.” the upon only judge charged the invol (a untary manslaughter felony) but also the Court, In its brief this the State ar- in lesser included offense of appeals gues initially the court of misdemeanor). (a toxicated See Tex.Rev. affirming of the trial erred the (c). 6701l-1(b) Civ.Stat. art. upon Gallardo, the decision court based the appellee found of misdemeanor dispositive differing is not due to the offense, pun trial court and the assessed its posture underlying of facts. State years imprisonment, sus ishment at two Gallardo, argues that unlike the instant pension appellee’s driver’s license for of case, the in- involved a situation wherein release, years upon plus fine of two dictment itself flawed because the was dollars. The trial how two thousand already run statute of on limitations ever, appellee’s granted then motion to set charged Additionally, offense. judgment, aside of statute argues case differs from limitations had run on misdemeanor no because “there were indica- Gallardo art. 12.- offense. See Tex.Code Crim.Proc. tions that the defendant him- Gallardo [in ] 02. The Ninth Court of affirmed instructions self had that the Yount, the trial court’s decision. State v. the lesser included misdemeanor offenses (Tex.App. — Beaumont argues Finally, included.” the State 1991). granted the State’s We motion the error appellee that since invited rehearing petition discretionary after charge on specifically requesting the refused, review to decide whether the was should be lesser included es- court of erred in appeals that the topped complaining of that error. now appellee’s correctly granted trial court mo response, our atten directs judgment. tion to set aside the We will judgments reverse to the the State failed to of trial court fact that appeals and the court of to the of the misdemean- reinstate submission original judgment trial charge. argues court’s and sen that the State Appellee tence. failing charge him negligent in with expira the misdemeanor offense before appeals held that court of applicable tion of the statute of limitations. granting appellee’s court not err in did if the State’s Appellee argues also judgment, holding motion to set aside the future argument accepted, cases “may that a not be of defendant convicted already has of limitations where statute if the period a lesser included offense offenses, expired on lesser included ex limitations for the lesser offense has charge purposefully could defendants pired notwithstanding the fact that [the means greater as a with great convicted could be defendant] circumventing ap the statute of longer to a applica er ... offense ... due offense. Addi plicable time-barred Yount, period limitation.” ble State v. only tionally, appellee argues that Gal- 254, quoting at Gallardo v. lardo, 738 S.W.2d but also Alston (Tex.App. 768 S.W.2d — San pet.), (Tex.App no ref’d). pet. Antonio court . —Beaumont disposition supports appeals’ appeals ruling trial reviewed the court’s case. under of discretion standard and of this an abuse over, jurisdiction appeals’ upon

The court of reliance was conferred Gal- misplaced, presentment as the charg- lardo and Alston was trial court instrument, ing facts of those two cases fail to render them even the instru- dispositive of the instant case. Gallar- ment at If was flawed. Id. the defen- do, the statute of limitations was deter- dant failed to direct the trial court’s atten- already charging mined to have run the offense tion to the defects in the instru- trial, for which the defendant was indicted when ment the defendant before would be presented. precluded raising the indictment was 768 S.W.2d those defects “on Alston, the time the appeal any postconviction proceed- at 880. Likewise at or in Therefore, presented, ing.” indictment the statute of 271 in- was Id. at n. an charged pertaining charges of- dictment which the commission of already expired. fense had 738 S.W.2d at offense limitations still con- case, jurisdiction upon 762. In this the statute of limitations fers the trial such expired felony bring had not offense for defendant must the defect to Thus, which was indicted. this court in attention order to presents wholly preserve any case a situation different error.1 than that addressed in either Gallardo case, appellee In this did inform the trial Alston. bar, by way court of the limitations of a judgment. motion to set aside Before Having disposed applicability of the trial, appellee could not attack the indict- Alston, we must make of Gallardo grounds ment on limitations because the general some observations about the na (involuntary manslaugh- indicted offense statutes of limitations. This ture of ter) regard, was not time-barred. pronouncements regarding past Court’s appellee could not have known what the have lacked consisten limitations statutes however, Appellee, evidence would show. cy. parte Since the Ex Dicker requested lesser offense instruc- son, (Tex.Cr.App.1977), tion be included. While have however, expressly we have treated limita the evidence would warrant known jurisdictional tions as a issue. If the State only finding guilt of the lesser alleged in an indictment that the offense requesting his actions in the instruction are beyond per at a time was committed jury indicative of his desire that limitations, by the mitted statute guilt guilt, returned a it would be jurisdiction trial court did not have over only. we have lesser While The error commit defendant. Id. at 203. before, an not addressed this exact issue fundamental and could be raised ted was presented almost identical situation was appeal. first time on for the Supreme the Rhode Island Court State v. however, 1990, interpreted we (R.I.1991). Lambrechts, 585 A.2d 645 V, 12 amendments to Article 1985 1.14(b) case, In that the defendant had been Texas Constitution and Article first-degree sex- charged Procedure and deter- with six counts of the Code of Criminal of six counts if an error in a instru- ual assault but was convicted mined that trial, trial, any second-degree such sexual assault. At ment not raised before was appellant 799 had that the error waived. Studer 263, lesser included offense of (Tex.Cr.App.1990). 273 More- instructed on the Meeker, (7th Cir.1983), 701 F.2d 685 1. We note that all of the federal circuit courts States question denied, 826, 96, that have addressed the of the statute 78 cert. 464 U.S. 104 S.Ct. as a defense have held that it is a Walsh, of limitations (1983); 700 L.Ed.2d United States v. 102 defense, implicate does not waivable and thus denied, (2d Cir.1983), 464 U.S. F.2d 846 cert. of fundamental error. See United the doctrine 96, 825, (1983); S.Ct. 78 L.Ed.2d 102 United 104 Percio, (6th F.2d Cir. States v. Del 870 1090 Williams, (4th Cir.1982), States v. 684 F.2d 296 1989); Gallup, States v. 812 F.2d 1271 United 1110, 739, denied, cert. U.S. 103 S.Ct. 74 459 DeTar, Cir.1987); (10th F.2d United States v. 832 Wild, (1983); States v. 551 L.Ed.2d 961 United Karlin, Cir.1987); (9th United States v. 785 denied, (D.C.Cir.1977), U.S. cert. F.2d 418 Cir.1986), denied, (3d rt. F.2d 90 ce (1977). 97 S.Ct. 53 L.Ed.2d (1987); United 107 S.Ct. 94 L.Ed.2d crimes, assault, no such choice was actual second-degree sexual each count of of when at at 3160. ly was barred limitations. available. Id. S.Ct. which Supreme “that the Rhode Island Court held decided that it was affirma- statute of limitations is a waivable give the defendant a choice “be better appellant had tive defense” and having lesser in the benefit of the tween by re- that affirmative defense waived asserting instruction or cluded offense questing that the be instructed on the lesser included statute of limitations on lesser offense. Id. at 647-648. petitioner offenses.” Id. Since defense, his limitations refused to waive heavily relied Lambrechts the trial court had committed no error DeTar, upon the case of United States v. charge jury on the refusing to lesser Cir.1987), (9th 832 F.2d 1110 offenses. at at Id. S.Ct. had contended that the trial defendant submitting in judge committed error lesser included offense instruction concern- none of these aforementioned While DeTar, ing a offense. time-barred controlling, reasoning the used in cases is also main- F.2d at 1113. defendant applicable persuasive. and More them is tained, however, request his for such over, analogous to this case is the situation constituted no an instruction waiver Lee, in we addressed State v. limitations defense. Id. at 1115. The De- Lee, (Tex.Cr.App.1991). the defen argument rejected Tar court the based dant had been indicted for the offense instructing jury the rationale Upon request, murder. the defendant’s validly on an offense of it could not jury trial court instructed on the lesser purpose convict would serve no other than manslaugh voluntary included offense of jurors. to mislead the circuit Id. The jury ter. The found the defendant noted that there would have been no voluntary manslaughter. The defendant problem allowing in the defendant the ben- appeal then claimed on that the evidence efit the lesser offense instruction he support his conviction was insufficient to willing his limitations been waive manslaughter. voluntary plurality defense. Id. The court concluded that of this Court held that treating request the defendant’s re- by invoking in the benefit of the lesser ceipt of the lesser included offense instruc- charge cluded offense at trial in not ob aas valid waiver best avoided “the jury, jecting to its submission to misleading jury evils of alternative by requesting such instruc fact denying a defendant an instruction that he included, estopped appellant tions is be to, desires and be entitled would complaining appeal that the from then the bar of limitations.” Id. failed to establish all the ele evidence reasoning Similar was used the case of at 781. ments of that lesser offense. Id. Florida,

Spaziano v. case, appellee in Likewise in the instant (1984). In Spa S.Ct. 82 L.Ed.2d 340 of the lesser included voked the benefit ziano, charged the defendant was with and charge by requesting that it be capital close convicted of murder. At the Therefore, jury. con we submitted evidence, judge offered from the clude that cannot benefit jury of instruct on lesser included offense instruction and then lesser included time-barred, if the de fenses which were lesser included attack his conviction fendant his limitations defens would waive grounds. ap- offense on limitations Since jury es. The defendant refused and the instructed pellee requested that the be only capital instructed on the offense. was offense, he is now on the lesser included rejected petition estopped complaining that his convic argument in er’s that he was entitled to limitations. tion of that offense barred structions on the offenses be time-barred affirming appeals’ The court of erred only cause such instructions would mislead orig setting aside the believing they could con trial court’s action into judgment. vict the defendant of one out of a number inal Williams, 684 F.2d at appeals is offense. of the court of REVERSED, original judgment 298-299. and the reinstat- of the trial court are and sentence cases, distinguishing the two ed. Court focused on who Williams offense and noted: the lesser included concurring. BAIRD, Judge, could no claim of Obviously ... there appears he by Askins because it waiver reasons, following I concur For the insanity defense. It was content with only. result government that did wish nothing all or run the risk of an I. degree charge of first murder. impression, first As this is a case of at 299. guidance from oth- majority correctly seeks However, to Williams’ re- relation However, jurisdictions. er quest, the Court held: two cases which from its discussion omits present In the case Williams received disposition feel are essential to requested, he was charge case question for review.1 The first State’s offense of the lesser included convicted States, 909 251 F.2d is Askins v. United in the first therein. Murder contained (D.C.Cir.1958). Askins was indicted capital for which degree is a murder, degree an offense for which first limitations. If the there is no statute of limitations, the statute of and there was no given requested lesser had not the requested and received a prosecutor charge, would included offense Williams murder, degree a lesser charge on second position of in the unenviable have been States, included offense. Askins v. United guilty on facing or not also, (D.C.Cir.1956). 741 See 231 F.2d requested charge capital offense. 296, Williams, 684 F.2d v. United States certainly in Williams’ interest best (Fourth Cir.1982). convict- Askins was 299 requested He the circumstances. under murder. Askins at- degree of second ed charge, the charge, did not conviction, alleging it was tacked his and, charge under the was convicted limitations. The by the statute of barred from the probability, all benefited Appeals agreed and reversed complain of the charge. He cannot now conviction. obviously consti- and his actions result present- nearly identical situation was con- of the time limitation tute a waiver charged Williams was ed Williams. 3282. tained in [18 U.S.C.] degree murder and convicted of first with at 299-300. However, degree murder. second distinction between instruction on the believe requested the Williams controlling appeal, and Askins Williams lesser included offense. On upon by authority relied accord with the the offense was barred contended Williams Consequently, Pages majority.2 8-9. the Court statute of limitations but by the cases, I Williams, utilizing would take relief, these two because denied following opportunity limitations- establish requested prosecutor, however, adopted by prefer, the rule We question ... for review asks: 1. The State’s v. United States Fourth Circuit requesting By specifically an instruction 296, (4th Williams, invoking Cir. 684 F.2d 299-300 included offense a lesser instruction, appellee is the es- 1982). benefit of that a defendant There the court held complaining, upon convic- topped from an instruc and received who had offense, that the lesser included tion for the offense, and had tion on a lesser expired on that of- limitations has statute of it, the bar of had waived been convicted fense? by his conduct. limitations pg. petition, 3. State’s DeTar, F.2d at 1115. 832 DeTar, States v. 832 the Court in United In fact Cir.1987), adopted (9th expressly F.2d 1110 in Williams: rationale

11 Askins, (quoting F.2d at n. 2 defendant re- bright line rule: When a 157 Fla. charge on an offense Mitchell v. So.2d quests and receives a limitations, [1946]). he is 75 by the statute of barred asserting the limita- estopped from later Second, by holding request a defendant’s However, requests if the State tions bar.3 offense waives for the limitations-barred charge on a limitations- and receives limitations, “... the statute of we avoid offense, es- the defendant is not misleading alternative evils asserting later the limitations topped from that he denying a defendant instruction case, In the instant bar. to, entitled but for desires and would be requested the limitations-barred limitations.” v. the bar of United States correctly concludes the trial Cir.1987). DeTar, (9th F.2d setting original

judge erred in aside the Lambrechts, also, A.2d See State judgment. Pages 9-10. (R.I.1991); and, Florida, Spaziano 447, 104 bright line rule at least S.Ct. 82 L.Ed.2d 340 would solve (1984). problems two current not resolved First, majority. ap- the rule would resolve foregoing bright line rule al- would that, by accepting pellee’s contention defendant an instruction that he low the argument, in future cases State’s "... to, desires and would be entitled already the statute of limitations has where limitations, prevents the the bar of offenses, expired on lesser included circumventing the statute of charge purposefully could defendants by purposefully over-pleading greater offense as a means of

with its case. circumventing ap- the statute of limitations plicable Page to the time-barred offense.” II. concern, In addressing 7.4 a similar noted: Askins Court Finally, majority’s reliance believe (Tex.Cr. To hold otherwise would be tanta- Studer v. S.W.2d Studer, allowing prosecuting App.1990), misplaced. mount to offi- is we cer to interpreted determine whether or not the stat- Tex.Code Crim.Proc.Ann. art. 12(b) ute of limitations or should should not be 1.14and Art. of the Texas Consti § applicable. jurisdiction concluded con tution. We fore, of murder in the first degree. may choosing also of the benefit juryA some method which only guilty ^[*] not be taken he is entitled to to has said this man is not one else can be entitled who is n proceed right of murder in the second ^[*] the statute of limita- with the away by degree every n equal protection will deprive prosecution and, benefit ^[*] the State guilty there- him ^[*] to defect ment of a concedes the indictment was not ment was defective. a ferred court lacked der, 799 S.W.2d at 273. because neither strument must be raised Studer pre-trial challenge: is irregularity charging inapplicable the trial court jurisdiction party contends the trial instrument and Indeed, in the in the instant case before or that the indict- charging trial. Stu subject majority present any in to trial, guilty appellee others of the like of- could not at- tions while ... Before fense have the of the statute tack the indictment on limitations benefit (in- grounds indicted offense of limitations because the State has cho- because the manslaughter) proceed prosecution by voluntary sen to with the a was not time- different method. barred. portion bright a lesser included offense which

3. This line rule is consis- conviction on requested. plurality holding he had Id. at 781. tent with the in Lee v. (Tex.Cr.App.1991), we where above, estopped challeng- majority recognized appel- held defendant was 4. As noted ing sufficiency support it. contention but did not later address evidence to lee’s run on misdemeanor Rather, of limitations had Page concludes 12.02, offense under Article V.A.C.C.P.1 appropriately informed the trial appellee appealed ruling pursuant The State the ver- court of the limitations bar after V.A.C.C.P., 44.01, contending that Article dict was returned “by way of a motion to requested Therefore, Id.5 judgment.” set aside the authorizing guilty verdict on instruction reliance on Studer wholly majority’s the lesser he should misplaced.6 rely heard to on the statute of limita comments, only in these I concur With to conviction. The Beaumont tions as bar result. Court of affirmed however, observing the State had MALONEY, JJ., join this MILLER and instruc failed opinion. tion, concluding the State “[i]f lesser includ to avail itself of those wishes CLINTON, Judge, dissenting. offenses, must seek its ed then felony indicted for the of- Appellee was felony prior indictment of the manslaughter. involuntary fense of running of the statute of limitations on him of the lesser included jury found included offenses.” those lesser driving while in- misdemeanor offense of Yount, (Tex.App.— at 254 appel- court sentenced toxicated. The trial 1991). Having first refused the Beaumont years county in the lee to two confinement review, discretionary we petition for State’s fine, $2,000.00 year jail, and a two sus- rehearing in granted its motion for order to upon his re- pension of his driver’s license by requesting address the contention that lease. instruction on the lesser included of granted ap- intoxicated, Subsequently the trial court and thus fense of judgment, felony for the involun pellee’s avoiding motion to set aside the conviction effectively manslaughter, appellee has tary his claim that the statute predicated upon argues it should be treated as an affirmative the statute of limita- 5. The dissent concludes juris- longer deprives trial court of under Tex.Penal Code Ann. 2.04. tions no defense Judge inapplicable continues: ‘This is to diction. Clinton It is clear to me that Studer is timely say, validity raised in the trial court in a unless case because the the instant manner, operate to divest limitations will not been contested. instrument has not Page authority Indeed, court of to convict.” IS the trial majority the indictment concedes However, J., (Clinton, Judge dissenting). Clin- subject being Further- was not to attacked. Judge Baird also concludes demonstrates, ton then states: “Yet more, the issue of as this case waived, can be with- a limitations defense may cognizable be until after not anomaly explaining out ever Therefore, begun. be trial has it cannot raised jurisdictional subject matter can be to waiver.” by required before trial as Studer. Id. at n. 5. Judge Unfortunately, point Clinton misses the majority 6. The concludes its discussion of Stu- my concurring opinion. ques- part II. of following der with the statement: jurisdic- of whether a limitations issue is tion Therefore, charges an indictment which ... subject of some tional or a defense has been the by of an offense barred limi- the commission many years both debate for as documented jurisdiction upon the trial still confers tations court, dissenting opinions and there bring must such that the defendant unnecessarily elongate that discus- is no need to in of the trial court defect to the attention However, opinions sion. it is clear from our preserve any error. order to today can be waived if not time- that limitations omitted.) (Footnote Page 8. ly consistent with asserted. This conclusion is majority’s reliance on Studer is Because "is dissent that limitations the comment nothing misplaced, is more than this statement defense to in the nature of an affirmative more dictum. obiter option prosecution, be invoked at the to defendant; de- but that it does not otherwise 12.02, supra, reads: 1. Article authority prive to convict.” trial court of any J., mis- (Clinton, dissenting) (citing or information Page “An indictment United 13 presented years Wild, (C.A.D.C.1977)). may within two demeanor be F.2d States v. 551 418 of the of- of the commission this as from the date notes that I describe Indeed the dissent However, fense, and not afterward." the limita- "a limitations defense.” essentially un- provision being has remained explained in "the tions bar is better as changed Clearly, today since 1857. no one of’ a defense. nature

13 631, Littlejohn, of limita v. 199 Conn. 508 A.2d upon reliance the statute waived Florida, v. 200(c)(2). Spaziano (1986). Tex.R.App.Pro., Rule Cf. tions. See 3154, (1984) L.Ed.2d 340 S.Ct. cites a host of cases which capital mur- (not to force a unconstitutional of invited applied has a doctrine this Court of limita- defendant to waive statute der have In a of contexts we error. number to the benefit of “third tions order obtain not, e.g., party held that a indeed authorizing con- option” of an instruction instruction, request particular and then included offense that is viction for a lesser complain appeal successfully on when limitations). Some otherwise barred E.g., by the trial court. request is honored suggested that limita- State, commentators have Tucker v. at 534 subject to it present matter is tions should be waiver whether (Tex.Cr.App.1988).2 The not, long straightforward, jurisdictional however. so quite perceived is as Appellee complained never that the tri- knowing intelligent, has as the waiver is give al court erred to the lesser spread upon is and evidence thereof specifically request- instruction he Limi- record. See Waiver of the Statute of Indeed, complained appellee has not ed. United Prosecutions: tations Criminal part. on the trial court’s action Wild, (1977); States 90 Harv.L.Rev. 1550 really issue in this case boils down Comment, in a The Statute of Limitations waiver; subject whether limitations is Waived?, Criminal Case: Can it be 18 Wm. so, it here whether waived (1977). Mary & L.Rev. 823 At least one by requesting the lesser included offense Padie approach. has court embraced instruction.3 (Alaska 1979). 594 P.2d 50 One jurisdiction- state has held limitations to be I. al, pur- subject but nevertheless to waiver every has consid- almost particular statutory provision suant to a it, question ered of whether limitations requiring jurisdictional pre- defects be can waived centers around whether it is be trial court to entertained served jurisdictional in nature. See Annotation: Larson, State v. appeal. 240 Mont. Waivability Against of Bar of Limitations (1989). Yet another state has P.2d 416 Prosecutions, 78 Criminal A.L.R.4th 693. specific statutory provision allowing con- courts number of have held that are of lesser included offenses that viction authority court lacks to render if the convic- limitations barred otherwise E.g., a limitations barred offense. charging a had under an indictment McGee, People v. Cal.2d 36 P.2d 378 that, although rejected by greater offense Muentner, State v. (1934); 138 Wis.2d supported by the evidence. jury, (1987). con- 406 N.W.2d 415 Others have Hicks, 495 A.2d 765 (Me.1985). State v. in the na- cluded that limitations is more entirely consis This Court has been prosecu- ture of an affirmative defense limi pronouncements regarding tent in its tion, option to be invoked at the hand have ob tations. On the one we defendant; does not otherwise but that it “[ljimitations a matter of are served authority deprive the trial court of the to Wild, on the trial defense and must be asserted United States v. E.g., convict. 551 in criminal cases.” Ex v. (C.A.D.C.1977); by the defendant United States F.2d 418 Ward, 684, (Tex. parte (C.A.5 1991); 470 at 686 Arky, 938 F.2d 579 State v. S.W.2d Schmidt, Lambrechts, parte also Ex (R.I.1991); Cr.App.1971).4 A.2d 645 See 585 did, also, State, appellee con- e.g., Capistran appeals that he v. 759 S.W.2d found 2. See 121, Court. (Tex.Cr.App.1988) (Opinion in his brief before this on motions cedes as much 124 therefore, case, State, 736, posture. accept in that rehearing); for Cadd v. 587 State, Carriger (Tex.Cr.App.1979); 741 153 390, proposition (1949); relied for this all 4.The Court in Ward Tex.Cr.R. 220 S.W.2d 169 opinion of United States cases cited therein. Biddinger Police v. Commissioner Court in of of 41, 128, York, 38 S.Ct. City where New I cannot find in the record of (1917). assuming Nevertheless, even But request. the court of 62 L.Ed. 193 made such a 14 (Tex.Cr.App.1973). contention. The courts are not called Given

500 S.W.2d view, might expect upon unnecessary that we had to do one a useless such fact, not, jurisdic in thing, judge recog- held that limitations trial and the learned is, rather, nature, optional tional but nized that all offenses included under the defendant, subject and hence to with the indictment were save that of mur- barred waiver, outright forfeiture. That is der, duty and it was his to instruct case, Long ago pre our however. not the jury he did.” as court, Appeals, held the Court of decessor Id., language unequivo- at 260. This seems necessary is not for a defendant that “[i]t cally to indicate that limitations is not a to relying on the statute of limitations option matter left to the of the accused. prose plead It devolves on the it bar. impacting Instead we viewed it as a matter cuting power to show an offense within authority of the trial court to convict. State, v. The period.” White statutory years In other contexts over the we also 488, (1878). The Tex.App. at 490 understood limitations to be seem have for the offense of murder. indicted White Black, parte Ex In 55 Tex. jurisdictional. on the lesser jury returned a verdict 121, (1908), Cr.R. 113 S.W. 534 this Court manslaughter, included offense of challenge prosecu pre-trial sustained a convicted thereon. He then White was In tion for a limitations barred offense. challenged by way of a mo the conviction Hoard, 519, 140 parte Ex 63 Tex.Cr.R. claiming judgment, of arrest (1911), post-convic S.W. 449 we sustained by lesser included offense was barred tion collateral attack on the basis of a denied. The limitations. His motion was parte Conway, Ex bar. both of reversed the trial Court (1931), 37 S.W.2d 1017 Tex.Cr.R. however, and dismissed the cause. See Morin, 172 Tex.Cr.R. parte and Ex State, also Fuecher v. Tex.Cr.R. entertained, (1962), 356 S.W.2d 689 we but (1893). S.W. merits, rejected collateral attacks on McKinney 96 Tex. Cr.R. applicants’ claims that convic based (1923), defendant 257 S.W. 258 by limitations. And tions were barred offense of indicted and convicted (Tex.Cr. Jackson v. 489 S.W.2d 565 gave jury murder. The trial court an App.1973), we reversed a conviction on the. McKinney it find instruction that should grounds applicable statute of limi .guilty of a number of lesser includ though tations had run even the claim was offenses that raised the evi ed were presented for the first time a motion limitations, dence it should relief rehearing. None of these avenues of acquit McKinney argued giving him. open would have been unless all-or-nothing such jury alternative running limitations to understood the encouraged as this to convict him deprive authority trial court of the greater re murder. On Ricketts, parte Ex E.g., 148 Tex. convict. rejection hearing the Court reiterated its (1945). Cr.R. this claim: began In the 1970’s the Court to be late it, proposition understand “As we expression more direct in its limita- urged per- is that the court should have jurisdictional presents tions bar. We mitted the to return a verdict for held, example, pleading, that “if the assault, manslaughter, grade or some face, charged is its that the offense shows they appellant guilty found to of be complaint, infor- by barred limitations the such under the instructions of court mation, fundamentally or indictment is so appellant say left it to to and then have the trial court does not have accept he or defective that whether would verdict corpus relief should interpose plea jurisdiction his of limitation later. We and habeas Dickerson, parte Ex agree granted.” cannot to the soundness of this be authority Court had to construe Texas law is "a matter of defense [that] limitations law, to, purport no before the it had occasion and did not must be asserted on the trial” was not Biddinger. Biddinger to do in so Whether under Texas Court. longer impact jurisdiction of (Tex.Cr.App.1977), cit be said to at 203 court. alia, Hoard, ing, parte and Peo inter Ex McGee, in supra. The Court ple v. both agree ma- of with the view Studer on to Dickerson went observe: presents jurisdic- that limitations no jority impediment prosecution. to That is tional matter “Usually limitation is a in the trial court in a say, to unless raised in must asserted as a defense civil manner, operate not timely limitations will prosecutions in in actions and criminal authority trial of to to divest the however, our statute jurisdictions; some question is in convict.5 The next whether juris- many those of other provides, as do this cause waived limitations allege dictions, indictment must that an by requesting jury a instruc- the trial court not committed at a time the offense was authorizing of the of the prosecution remote that so in- lesser included offense Article offense is limitations. part company toxicated. It is here that I 21.02(6), V.A.C.C.P.” majority. with belatedly identi- Thus we seem to have long-time under- fied the source for our II. standing jurisdictional limitations is That an indictment or information shows language Chapter in the not alleged therein on its face that V.A.C.C.P., itself, our statutes of wherein is a matter that now is limitations barred found, Chapter limitation are pretrial, any predi- or error must be raised Y.A.C.C.P., governing pleading requisites. appeal cated on that defect will be lost “on State, See also Dickerson v. 571 S.W.2d postconviction proceeding.” other or (Tex.Cr.App.1978); parte County, Ex 1.14(b), supra; su- Article Studer v. (Tex.Cr.App.1980). 601 S.W.2d 357 expect pra. fairly cannot a defendant We however, judgment object pretrial, to Any notion that an indictment or infor- for a lesser included offense of conviction allege mation fails to facts sufficient limitations, for, although that is barred to show no limitations bar is insufficient to the lesser included offense will be em- jurisdiction, vest the trial court with howev- allegations greater, within he braced er, hold- cannot survive this Court’s recent way knowing has no before trial wheth- ing in Studer v. jury finding er the evidence warrant a that, (Tex.Cr.App.1990). There we held fol- guilty only of the lesser offense. that he is V, lowing the 1985 amendments Article objection no simply He has valid 12 of the Texas Constitution and Article § 1.14(b), supra. indictment under Article 1.14(b), Y.A.C.C.P., defects of either form Nevertheless, he must make some kind of or substance instrument do objection imposition trial court to deprive authority the trial court of lesser in- on a limitations barred proceed to trial and defects convict. Such else, is cluded since limitations longer implicate jurisdiction no jurisdictional, he will lose the claim. court, and therefore cannot be raised collat- erally, appeal, appellant or for the first time on as In the instant cause did raise Accordingly, an his defense in the trial via before. whether we view limitations judgment. pleading insufficient as to limitations as a a motion to set aside the See 35; form, 27.09, Tex.R.App.Pro., Rules defect of see Article 34 & White § V.A.C.C.P., 21.02(6) 21.21(6), State, supra. question remains Articles & v. The substance, raising V.A.C.C.P., estopped or as a defect of see whether is 27.08, 2, V.A.C.C.P., having himself re- juncture, Article it can no claim at this text, Judge concurring Judge separate opinion convict. See ante. Yet 5. In a Baird trial court to inapposite. maintains that Studer is If that defense that a limitations Baird also concludes true, escape waived, were I do not see how we could explaining the without ever can be jurisdictional, conclusion jurisdictional anomaly matter that a always Studer con- since before the Court subject to waiver. can be authority of the sidered limitations to affect the not quested jury that the authorized to re- The State did at trial to the be lesser included offense instruction. includ- State a verdict of on the lesser turn Yount, supra, at v. 254. State does my offense. view he is not. ed argue not now that the trial court erred to is entitled to an instruction defendant Rather, give that instruction. the State analytically if in on a lesser offense it is that, having given the maintains instruc alleged in the cluded within the offense tion, the trial court erred to set aside indictment, 37.09, Articles 37.08 & under judgment on of limitations. But I the basis Y.A.C.C.P., and if there is some evidence agree must with observation which, jury rationally con from could “[wjhether Supreme Court that Wisconsin guilty only he is of that lesser clude that a defendant is entitled to a lesser included State, E.g., v. included offense. Bell and whether the statute offense instruction (Tex.Cr.App.1985). The evi run on a crime of limitations has are two in this cause established without dis dence Muentner, separate questions.” v. appellee driving the car in pute that was supra, request at 420. A for a 406 N.W.2d killed, passengers which three were included offense instruction has lesser been But there was that he was intoxicated. held insufficient to constitute a waiver of a minimal, dispute, however as to some Id.; State, limitations defense. Tucker v. it was he or the driver he struck whether (Fla.1984); 459 So.2d 306 Hall v. driving wrong side who was head-on (Ala.Cr.App.1986). So.2d 1145 Contra: highway on the fatal of the two lane Williams, 684 F.2d 296 United States v. Thus, pres occurred. the record collision Lambrechts, (CA 1982); supra. jury for the to doubt ents a rational basis nothing inherently contradictory I see “by the deaths rea appellee “caused” allowing right jury to a an accused intoxication.” V.T.C.A. Penal son of [his] grade exactly what of of determination of Code, 19.05(a)(2). jury On basis committed, affording fense he while also involuntary rationally acquit him of could protection him the of a limitations defense evi manslaughter. Because there was jury finds he only should the offense the guilty only of the dence by limitat did in fact commit be barred in included offense of lesser may argued It as a matter ions.7 toxicated, our law to required he was entitled under policy that an accused should be only possible legal jus an instruction. a limitations defense as a condi to waive denying obtaining it is that the lesser an instruction on a lesser tification for tion of subject may to a limita offense that be limitations included offense was included State, supra; Spa have concluded See Tucker v. tions bar. But because we barred. Florida, question supra. That jurisdictional, is not we can ziano v. that limitations cause, however, since not us trial court was without before say that the given uncondition the instruction here was authority give the instruct power and objection from the State.8 ally, and without ion.6 greater with a non-barred supra, an accused McKinney we held it was 6. evidence not warranted it inclusive offense to instruct the not error to refuse forcing accept for an him to conviction McKinney guilty of several find could offenses, included of- requested. limitations barred lesser otherwise as he had included lesser overreaching impute correctly no such in- fense. I mean to trial court we held the Instead cause, of course. the State in this find he com- that if it should structed the than the offenses rather one of those mitted hold, Florida, supra, does not as 8. Spaziano v. murder, they acquit should offense of indicted defendants, including suggests, all the State only appropri- altogether. This be the him Texas, the statute of limita must waive those limitations to disposition we understand ate in invoke the benefit tions in order to jurisdictional bar to conviction for impose a barred lesser struction on a limitations Today the Court con- offenses. lesser included law, purely question of state offense. That is cludes, however, agree, no that limitations and I province United States Su beyond longer presents such a bar. preme Court. See n. ante. simply Spaziano that it does held in obvious advan- approach has at least one Eighth for Florida deliberately Amendment violate tage. prevents the State It to, majority analogy draws inter alia, Lee, (Tex.Cr. ALVARADO, Appellant, Eduardo plurality App.1991). Lee a of the Court plurality holding in reiterated an earlier Texas, Appellee. STATE (Tex.Cr. Bradley v. App.1985), that a defendant who fails to 449-91, Nos. 450-91. voluntary to a instruction on Texas, Court of Criminal manslaughter as a lesser included offense En Banc. complain appeal, of murder cannot then he is after convicted lesser March 1993. offense, that the evidence is insufficient to Rehearing May Denied necessary element sudden establish passion. premised, how

ever, very peculiar interrelationship

between the offenses of murder and volun

tary manslaughter Legis as defined Code,

lature. V.T.C.A. Penal 19.02 See §§ In essence in Bradley

and 19.04. we said

that an accused is not entitled to the bene jury finding

fit of that he acted in both passion, appellate

sudden and an determi

nation that did not. I do not deem Lee controlling Bradley here un

der the law was entitled to a both instruction, and,

lesser included offense ab waiver, express

sent an to a limitations

defense. by merely requesting

I would hold that

the instruction on the lesser included of- intoxicated, appellee

fense of

did not waive his claim that conviction for

that offense was statute of Appellee

limitations. was free to raise the

issue of limitations in the trial court once

the factfinder had found him

lesser, limitations barred offense. The tri- granting

al court therefore did not err in

his motion to set aside the

conviction for that offense.

Accordingly, judg- I would affirm the appeals.

ment of the court of not, I respectfully

does that reason

dissent.

require capital prosecution. its defendants to waive the statute of offense in a the murder Here obtaining limitations as a condition of an in not insist on such a waiver in the State did struction on a limitations barred lesser included trial court.

Case Details

Case Name: State v. Yount

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 24, 1993

Citation: 853 S.W.2d 6

Docket Number: 093-92

Court Abbreviation: Tex. Crim. App.