OPINION ON APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW
MEYERS, Judge.
According to judgments entered in the trial court, appellant was convicted of aggravated sexual assault in four cases con[218]*218solidated for prosecution. His punishment was assessed at confinement in the penitentiary for terms of 49, 40, 22, and 15 years. On appeal he claimed that these convictions were barred by the ex post facto clauses of the Texas and United States Constitutions because the statute under which he was prosecuted had not yet been enacted at the time of his allegedly criminal conduct. Tex. Const. art. I, § 16; U.S. Const. art. I, § 10. The Court of Appeals did not reach the merits of this claim, however, holding instead that appellant forfeited the right to complain of it on appeal because he did not first raise it in the trial court. Ieppert v. State, Nos. 05-91-00084-CR, 05-91-00085-CR, 05-91-00087-CR, 05-91-00088-CR, 1992 WL 86706 (Tex.App.—Dallas, delivered 4/30/92). We granted discretionary review to decide whether prosecution for conduct which was not illegal when committed is a forfeitable irregularity of the trial process. We hold that it is not.
The Court of Appeals relied on several authorities to support its conclusion. First, it maintained that appellant’s claim was defaulted under article 1.14(b) of the Texas Code of Criminal Procedure because it was not called to the judge’s attention before trial. Article 1.14(b) provides that
[i]f the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postcon-viction proceeding.
This statute was enacted to avoid original postconviction attacks, either by direct appeal or by habeas corpus, upon the sufficiency of charging instruments containing one or more defects of substance listed in article 27.08 of the Code of Criminal Procedure. Such defects were formerly held to deprive the trial court of jurisdiction, and so were cognizable by reviewing courts at any time, whether first raised in an earlier proceeding or not. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Crim.App. 1974). Now, however, most of these defects are subject to the rule of forfeiture expressed in article 1.14(b). Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990).
But appellant did not complain on appeal of the instant causes that his indictment was defective. Certainly, he did not claim that it suffered a substantive or formal defect under article 27.08 or 27.09. In fact, for purposes of appeal, he effectively conceded, just as he now does on discretionary review, that the indictment fairly and adequately charged him with the commission of an offense. He just claims that the penal statute proscribing such offense did not exist when his allegedly illegal conduct occurred. As this does not essentially present a question about the form or substance of an indictment, we think it clear that the forfeiture provisions of article 1.14(b) do not apply.
The Court of Appeals also relied on our opinion in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) (opinion on rehearing), which authoritatively construes article 36.19 of the Texas Code of Criminal Procedure. That statute provides that
[wjhenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 have been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.
The articles to which this statute refers generally require that the trial judge “deliver to the jury ... a written charge distinctly setting forth the law applicable to the case,” and prescribe, among other things, the method for taking exception to the charge, requesting that different or additional instructions be included in it, delivering it to the jury, and certifying it for inclusion in the record. Our opinion in Almanza interpreted article 36.19 to be a special combination of forfeiture and harmless error rules applicable specifically to irregularities involving one or more of these five jury charge statutes. The Court of Appeals held, under authority of this interpretation, that the absence of a jury charge objection at trial waived appel[219]*219lant’s right to complain of ex post facto violations on appeal because the objectionable jury charge was not so egregiously harmful as to deprive him of a fair and impartial trial.
But, appellant did not complain in the Court of Appeals that the jury charge failed distinctly to set forth “the law applicable to the ease” or that it was defective in any other way controlled by articles 36.14 through 36.18. Indeed, it is apparent in the instant cause that the application paragraph of the charge accurately tracked the allegations of the indictment and fairly instructed the jury not to convict appellant without first finding those allegations to be true beyond reasonable doubt. Accordingly, it is clear that the hybrid forfeiture/harmless error provisions of article 36.19, as construed by Almanza, are also inapplicable to appellant’s contentions in the instant causes.
The fact is that an ex post facto complaint about the improper retroactive application of a penal statute is not really a complaint about errors or defects in an accusatory pleading or a jury charge. Rather, it is a complaint that the law does not permit prosecution or conviction for behavior which did not constitute a criminal offense when it happened. Certainly there are contexts in which it may be appropriate to raise an objection to a charging instrument or jury instruction because it purports to authorize conviction for conduct which was not against the law. See Ex parte Hawkins, 722 S.W.2d 424 (Tex.Crim.App.1986) (indictment which alleges violation of a penal statute not in effect on the date alleged in the indictment is fundamentally defective because it “fails to allege an offense”); Pope v. State, 509 S.W.2d 593 (Tex.Crim.App.1974) (jury charge which authorizes conviction for lesser included offense under a statute not in effect on the date of the alleged offense is objectionable). But the mere contention that a conviction is barred under these circumstances is not essentially a grievance about charging instruments or jury instructions. Accordingly, the default provisions of article 1.14(b) and the forfeiture/harmless error provisions of article 36.19 do not purport to bar full appellate review of such complaints, at least when they are not expressly directed to the sufficiency of an accusatory pleading or a jury charge.
Nevertheless, the character of our law in general is such that the right to complain on appeal about most other trial errors is also contingent upon a specific pretrial or contemporaneous objection. See, e.g., Tex.R.App.Proc. 52; Tex.R.Crim.Evid. 103. Thus, in addition to its reliance on articles 1.14(b) and 36.19, the Court of Appeals also cited Rogers v. State,
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION ON APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW
MEYERS, Judge.
According to judgments entered in the trial court, appellant was convicted of aggravated sexual assault in four cases con[218]*218solidated for prosecution. His punishment was assessed at confinement in the penitentiary for terms of 49, 40, 22, and 15 years. On appeal he claimed that these convictions were barred by the ex post facto clauses of the Texas and United States Constitutions because the statute under which he was prosecuted had not yet been enacted at the time of his allegedly criminal conduct. Tex. Const. art. I, § 16; U.S. Const. art. I, § 10. The Court of Appeals did not reach the merits of this claim, however, holding instead that appellant forfeited the right to complain of it on appeal because he did not first raise it in the trial court. Ieppert v. State, Nos. 05-91-00084-CR, 05-91-00085-CR, 05-91-00087-CR, 05-91-00088-CR, 1992 WL 86706 (Tex.App.—Dallas, delivered 4/30/92). We granted discretionary review to decide whether prosecution for conduct which was not illegal when committed is a forfeitable irregularity of the trial process. We hold that it is not.
The Court of Appeals relied on several authorities to support its conclusion. First, it maintained that appellant’s claim was defaulted under article 1.14(b) of the Texas Code of Criminal Procedure because it was not called to the judge’s attention before trial. Article 1.14(b) provides that
[i]f the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postcon-viction proceeding.
This statute was enacted to avoid original postconviction attacks, either by direct appeal or by habeas corpus, upon the sufficiency of charging instruments containing one or more defects of substance listed in article 27.08 of the Code of Criminal Procedure. Such defects were formerly held to deprive the trial court of jurisdiction, and so were cognizable by reviewing courts at any time, whether first raised in an earlier proceeding or not. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Crim.App. 1974). Now, however, most of these defects are subject to the rule of forfeiture expressed in article 1.14(b). Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990).
But appellant did not complain on appeal of the instant causes that his indictment was defective. Certainly, he did not claim that it suffered a substantive or formal defect under article 27.08 or 27.09. In fact, for purposes of appeal, he effectively conceded, just as he now does on discretionary review, that the indictment fairly and adequately charged him with the commission of an offense. He just claims that the penal statute proscribing such offense did not exist when his allegedly illegal conduct occurred. As this does not essentially present a question about the form or substance of an indictment, we think it clear that the forfeiture provisions of article 1.14(b) do not apply.
The Court of Appeals also relied on our opinion in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) (opinion on rehearing), which authoritatively construes article 36.19 of the Texas Code of Criminal Procedure. That statute provides that
[wjhenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 have been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.
The articles to which this statute refers generally require that the trial judge “deliver to the jury ... a written charge distinctly setting forth the law applicable to the case,” and prescribe, among other things, the method for taking exception to the charge, requesting that different or additional instructions be included in it, delivering it to the jury, and certifying it for inclusion in the record. Our opinion in Almanza interpreted article 36.19 to be a special combination of forfeiture and harmless error rules applicable specifically to irregularities involving one or more of these five jury charge statutes. The Court of Appeals held, under authority of this interpretation, that the absence of a jury charge objection at trial waived appel[219]*219lant’s right to complain of ex post facto violations on appeal because the objectionable jury charge was not so egregiously harmful as to deprive him of a fair and impartial trial.
But, appellant did not complain in the Court of Appeals that the jury charge failed distinctly to set forth “the law applicable to the ease” or that it was defective in any other way controlled by articles 36.14 through 36.18. Indeed, it is apparent in the instant cause that the application paragraph of the charge accurately tracked the allegations of the indictment and fairly instructed the jury not to convict appellant without first finding those allegations to be true beyond reasonable doubt. Accordingly, it is clear that the hybrid forfeiture/harmless error provisions of article 36.19, as construed by Almanza, are also inapplicable to appellant’s contentions in the instant causes.
The fact is that an ex post facto complaint about the improper retroactive application of a penal statute is not really a complaint about errors or defects in an accusatory pleading or a jury charge. Rather, it is a complaint that the law does not permit prosecution or conviction for behavior which did not constitute a criminal offense when it happened. Certainly there are contexts in which it may be appropriate to raise an objection to a charging instrument or jury instruction because it purports to authorize conviction for conduct which was not against the law. See Ex parte Hawkins, 722 S.W.2d 424 (Tex.Crim.App.1986) (indictment which alleges violation of a penal statute not in effect on the date alleged in the indictment is fundamentally defective because it “fails to allege an offense”); Pope v. State, 509 S.W.2d 593 (Tex.Crim.App.1974) (jury charge which authorizes conviction for lesser included offense under a statute not in effect on the date of the alleged offense is objectionable). But the mere contention that a conviction is barred under these circumstances is not essentially a grievance about charging instruments or jury instructions. Accordingly, the default provisions of article 1.14(b) and the forfeiture/harmless error provisions of article 36.19 do not purport to bar full appellate review of such complaints, at least when they are not expressly directed to the sufficiency of an accusatory pleading or a jury charge.
Nevertheless, the character of our law in general is such that the right to complain on appeal about most other trial errors is also contingent upon a specific pretrial or contemporaneous objection. See, e.g., Tex.R.App.Proc. 52; Tex.R.Crim.Evid. 103. Thus, in addition to its reliance on articles 1.14(b) and 36.19, the Court of Appeals also cited Rogers v. State, 640 S.W.2d 248 (Tex.Crim.App.1982) (opinion on rehearing) as authority for the general proposition that legal rights, even those assured by due process, are usually forfeitable by inaction. Clearly, the court was right about this. Because the law ordinarily expects litigants to insist upon their rights at a time when they can be implemented, appellate courts should not consider such rights to have been violated if the beneficiary was willing to forego them at trial.
As we noted in Marin v. State, 851 S.W.2d 275, at 278 (Tex.Crim.App.1993),
... our system may be thought to contain rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request[.]
851 S.W.2d at 279. We observed that most rights of the parties in litigation are of the last type, but we went on to explain that other rights, such as the right to counsel and the right to a trial by jury, “are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system.” Id. at 278. We held that these rights can be waived, but only by overt expression. Id. at 279. We also emphasized that the system “includes a number of requirements and prohibitions which are essentially independent of the litigants’ wishes ... and cannot, therefore be waived or forfeited by the parties.” Id. These systemic requirements, we held, include both jurisdictional prerequisites to the exercise of judicial authority and nonju-risdictional fundamentals of lawmaking and adjudication. Id. Which one of these cate[220]*220gories holds the ex post facto clause depends upon the nature of the clause itself.
Writing for this Court in 1986, Judge McCormick described the prohibition against ex post facto laws, found in the constitutions of Texas and the United States, as axiomatic to a government of laws.
“The fundamental principles of fairness upon which our system of justice is founded prohibits [sic] the enactment of laws which either make an act a criminal offense after its commission or retroactively impose harsher sanctions at trial for a crime than were in effect at the time of its commission.”
Ex parte Bonham, 707 S.W.2d 107, 108 (Tex.Crim.App.1986). In that case, we unanimously agreed applicant was entitled to collaterally attack his criminal conviction, evidently for the first time by writ of habeas corpus, because his punishment had been enhanced with a prior conviction under the authority of a statute that was not enacted until after commission of the crime with which he was charged. It is clear that we did not regard the presence or absence of a trial objection in that case as at all relevant to the merits of applicant’s ex post facto claim.
The United States Constitution provides categorically that “[n]o ... ex post facto Law shall be passed.” U.S. Const, art. I § 9 cl. 3. So does the Texas Constitution. Tex. Const, art. I § 16. It is clear, both from the plain language of these provisions and from the way in which this Court has implemented them in the past, that ex post facto prohibitions do not merely confer upon the people a waivable or forfeitable right not to have their conduct penalized retroactively. Indeed, the constitutional prohibition against ex post facto legislation is not really an individual right at all. It is a categorical prohibition directed by the people to their government. Short of a constitutional amendment, the people may not waive this prohibition, either individually or collectively, any more than they may consent to be imprisoned for conduct which does not constitute a crime.
The judgments of the Court of Appeals are, therefore, reversed and these causes are remanded to that Court for reconsideration of appellant’s first point of error in a manner not inconsistent with this opinion.