State v. Turner

898 S.W.2d 303, 1995 Tex. Crim. App. LEXIS 53, 1995 WL 271712

• Court: Court of Criminal Appeals of Texas
• Decided: May 10, 1995
• Docket: 174-94
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellee was indicted on April 14, 1992, in Cause No. 629838, for a theft allegedly committed on or about August 29, 1987. On January 11, 1993, the State filed an indictment in Cause No. 653846 also alleging ap-pellee committed a theft on or about August 29,1987, but alleging a different owner of the appropriated property. The first indictment was dismissed on January 13, 1993. On the day of trial appellee filed a Motion to Dismiss the second indictment. The trial court granted appellee’s motion and the Court of Appeals affirmed. Turner v. State, 868 S.W.2d 351 (Tex.App. — Houston [14th Dist.] 1993) (op. on original submission). The State filed a motion for rehearing which was overruled by the Court of Appeals. Id. at 355 (Tex.App. — Houston [14th Dist.] 1994) (op. on reh’g). We granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in its interpretation and application of article 1.14 and its holding that the statute of limitations is a defense.¹

On the day of trial appellee filed a Motion to Dismiss in which he alleged that “[t]he Indictment shows on its face that the alleged offense was committed on August 29, 1987 and the Indictment was returned on the 11th day of Jan. 1993 which is more than 5 years from the date of [the] offense and is therefore barred by Article 12.01(3)(A) from prosecution.” The State argued that the motion should not be entertained because it was untimely filed under article 1.14(b) which requires that objections to defects in an indictment be raised prior to the date of trial. Appellee responded that jurisdictional defects can be raised at any time. Stating that the case appeared to be barred by the applicable statute of limitations, the trial court granted appellee’s motion, dismissing the case with prejudice.²

The Court of Appeals reasoned that since the dates alleged in the indictment (the date of the offense and the date the indictment was returned) were correct, article 1.14 did not apply:

A defect in a limitations problem which is “substantive” occurs when the indictment reflects an incorrect date in either the return of the indictment or the commission of the offense. For example, an indictment returned February 1, 1993, which reflects that the charged offense of theft occurred January 1, 1953, when the offense actually occurred on January 1, 1903, could be amended by the prosecutor to reflect the proper date. Another amendable defect occurs when the indictment reflects that it was returned February 1, 1953, for a crime committed on January 1, 1993, when the indictment was actually returned on February 1, 1903. Both of these examples are clearly susceptible to amendment or correction, and therefore Article 1.14 applies.

However, when the prosecution does not dispute that the indictment contains the correct dates for both the date of the return of the indictment and the date of the offense, there is nothing for the State to amend or correct. In the present case, the State has not pled, argued or presented evidence of tolling; therefore the indictment contains no correctable error or defect.

Turner, 868 S.W.2d at 353-54 (op. on original submission) (emphasis in original). In addition, the Court of Appeals held that the statute of limitations is a defense that can be brought to the court’s attention the day of trial without waiving the right to claim the defense. Id. at 354. They explained that since the State must prove the offense occurred within the limitation period, limitations must be properly pled or the indictment cannot be said to charge an offense. Id. at 354-55.

On rehearing, the Court of Appeals rejected the State’s contention that State v. Yount, 853 S.W.2d 6 (Tex.Crim.App.1993) required an objection based upon limitations to be brought to the trial court’s attention before the day of trial. Turner, 868 S.W.2d at 355 (op. on reh’g). Rather, the Court of Appeals construed Yount as allowing an objection on the day of trial, but before the trial commenced.

The State claims the Court of Appeals erred in failing to hold that under article 1.14(b) appellee waived any defect in the indictment by not bringing it to the attention of the trial court before the day of trial. The State also complains the Court of Appeals erred in failing to account for the language and meaning of Yount. Finally, the State claims the Court of Appeals erred in categorizing limitations as a defense. Appellee argues that an indictment which shows a limitations problem on its face is insufficient to vest the court with jurisdiction.

I. Article 1.14(b)

Article 1.14(b) of the Code of Criminal Procedure provides in part:

If 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.

Article 27.08 of the Code of Criminal Procedure sets forth what are considered defects of substance in an indictment or information.³ Reading articles 1.14 and 27.08 together, we concluded in Studer v. State, 799 S.W.2d 263, 268 (Tex.Crim.App.1990), that the defects of substance listed in article 27.08 must be raised pretrial or “the accused has forfeited his right to raise the objection on appeal or by collateral attack.” Among article 27.08’s enumerated defects of substance is the following:

That it appears from the face thereof that a prosecution for the offense is barred by a lapse of time, or that the offense was committed after the finding of the indictment[.]

Tex.Code Crim.Proc.Ann. art. 27.08(2).

The Court of Appeals distinguished between different types of defects under arti-ele 1.14, concluding that some defects can be corrected while others cannot and that only defects that can be corrected, apparently by a simple word or number change, are subject to the confines of article 1.14 and 27.08. We disagree. There is no language in either of those articles distinguishing between correctable and non-correctable defects. Nothing on the face of article 1.14 indicates that if a defect cannot be corrected by a simple amendment it is not subject to the timely objection requirement thereof.

The indictment at issue was returned on January 11, 1993, and alleged a theft that occurred on or about August 29, 1987. There is more than five years between the date of the alleged offense and the date of the indictment. Accordingly, “it appears from the face [of the indictment] that a prosecution for the offense is barred by a lapse of time.” Tex.Code Crim.Proc.Ann. art. 27.08(2). This is a defect of substance. Id. Under article 1.14(b), if a defendant fails to object to such a defect in an indictment “before the date on which the trial on the merits commences ... he waives and forfeits the right to object to the defect....” We agree with the State that article 1.14(b) “means what it says.” A defendant must bring defects of form or substance in an indictment to the attention of the trial court “before the date on which the trial commences [or] he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal.” By waiting until the date of trial,⁴ appellee “waivefd] and forfeited] the right to object to the defect[.]”⁵

II. Limitations

In its opinion on original submission the Court of Appeals stated that

... a defense [need not] be brought to the court’s attention pursuant to Article 1.14. We believe that the statute of limitations in this case is a defense, not a defect, and can be brought to the court’s attention the day of trial without waiving the right to claim the defense.

Turner, 868 S.W.2d at 354 (op. on original submission). The State contends limitations is not a defense, but a pleading requirement. Appellee argues that limitations is a defense and as a defense can be raised at any time irrespective of article 1.14(b).

While Yount did not address the issue of whether limitations is a “defense,” it provides some clue as to the nature of limitations.⁶ We there paused to “make some general observations about the nature of statutes of limitations.” Yount, 853 S.W.2d at 8. We recognized that in the past limitations was considered a jurisdictional issue. If an indictment was not presented within the limitation period or did not properly allege tolling of the limitation period, the trial court did not have jurisdiction; therefore, that defect could be raised at any time. But with the passage of the amendments to Article V, § 12 of the Texas Constitution and article 1.14(b) of the Code of Criminal Procedure, it is clear that jurisdiction is conferred by the presentment of the charging instrument, even if it appears from the face of the instrument that there is a limitations problem. We concluded that “an indictment which charges the commission of an offense barred by limitations still confers jurisdiction upon the trial court, such that the defendant must bring the defect to the attention of the trial court in order to preserve any error.” Id. Accordingly, the Legislature has decided that a limitations allegation in an indictment no longer has jurisdictional implications.

The Code of Criminal Procedure refers to limitations in several provisions. Article 21.02, Requisites of an indictment, requires that “[t]he time mentioned [in the indictment] must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.” Article 12.05 provides that the time the defendant is absent from the state shall not be computed in the period of limitation, nor shall the time during the pendency of the indictment.⁷ Article 28.06, Shall be fully discharged, when, provides that

Where, after the motion or exception is sustained, it is made known to the court by sufficient testimony that the offense of which the defendant is accused will be barred by limitation before another indictment can be presented, he shall be fully discharged.

These provisions address two separate issues — the matter of pleading and the matter of proof.

That the offense occurred within the limitation period is a matter that must be plead under article 21.12. Proof is a separate issue. Article 28.06 provides that a defendant shall be discharged upon “sufficient testimony” that the offense was not committed within the limitation period. Moreover, this Court has repeatedly held that the State bears the burden of proving the offense occurred within the limitation period. See, e.g., Barnes v. State, 824 S.W.2d 560, 562 (Tex. Crim.App.1992) (“The state had the burden to establish beyond a reasonable doubt that the offense was committed within the statute of limitations”); Vasquez v. State, 557 S.W.2d 779, 783 n. 5 (Tex.Crim.App.1977) (“The burden of proof is always on the State to show that the offense alleged was committed ... within the period of limitation regardless of date alleged”); Donald v. State, 165 Tex. Crim. 252, 306 S.W.2d 360 (App.1957) (reiterating the “well-established rule” that the “burden is on the state to show that the offense was committed within the period of limitations_”). The State also makes this distinction, pointing out that “[wjhether the State can prove a date that is not barred by limitations is a different question than whether it alleged a date barred by limitations.”

Failure of the State to properly plead that the offense occurred within the limitation, or that an exception tolled the period, must be raised before the date of trial as discussed in Part I above. However, failure of the State to properly plead the issue does not excuse it from proving that the offense occurred within the limitation period, or that an exception applied.⁸ Accord Fisher v. State, 887 S.W.2d 49 (Tex.Crim.App.1994) (failure to allege all elements of offense in indictment does not relieve State from proving all elements; reviewing court measures sufficiency of evidence against incomplete indictment and controlling penal code provision).

In holding that “the statute of limitations in this case is a defense not a defect,” the Court of Appeals mischaracterized the issue presented as one of proof rather than pleading.⁹ Whether proof that an offense occurred within the limitation period, or that an exception applied tolling the period, is viewed as a defense, whether it is similar to an element of the offense,¹⁰ or whether it is simply sui generis is of no moment here and the Court of Appeals erred in addressing the issue as one of proof.

Having concluded that the Court of Appeals erred in holding that article 1.14(b) was inapplicable to the limitations defect in the indictment, we reverse the judgment of the Court of Appeals and remand this cause to that court for proceedings consistent with this opinion.

OVERSTREET and MEYERS, JJ., concur in the result.

1 .Specifically, we granted the following grounds for review:

1. The court of appeals erred in holding that Tex.Code of Crim.P. art. 1.14(b) does not apply to motions to quash based on the statute of limitations.

2. The court of appeals erred in holding that the statute of limitations is a defense.

3.The court of appeals erred in holding that Tex.Code Crim.P. art. 1.14(b) applies only to defects that can be amended or corrected.

2 . Theft is governed by a five year statute of limitations. Tex.Code Crim.Proc.Ann. art. 12.01(4)(A).

3 . Article 27.09 sets forth exceptions to form.

4 . Judge Baird, in his dissenting opinion, contends that "it is incumbent upon us” to determine when "trial on the merits commences.” Dissenting opinion at 310. In our capacity as a court of discretionary review, we do not address issues that are not addressed by the Court of Appeals or raised by the parties. Before the Court of Appeals the State contended that "the trial court erred in entertaining a motion to dismiss on the day of trial” contrary to article 1.14(b). Appellee did not respond by arguing that the date in issue was not the day of trial, but rather argued that the indictment was properly dismissed because the defect was fundamental in nature and not subject to article 1.14(b). The Court of Appeals assumed that the day of trial was the date on which appellee’s motion to dismiss was filed. Turner, 868 S.W.2d at 352-53 (stating "appellee’s motion to dismiss was filed on March 8, 1993, the day of trial”). Neither party disputes the Court of Appeals' assumption as to the date of trial or contends that this was not "the date on which the trial commence[d]” for purposes of article 1.14(b).

5 .The implication of Judge Clinton's dissenting opinion is that article 1.14 only affects a defendant’s appellate remedies and has no impact on a defendant’s rights at trial or pretrial. Article 1.14 indicates that by failing to object before the date of trial a defendant gives up: the right to immediate dismissal of the charge, correction and amendment of the indictment by the State, and the right to raise the defect on appeal or in any other post-conviction proceeding. See Tex. Code Crim.Proc.Ann. arts. 1.14, 28.09, 28.10, 28.11.

6 . Yount is not dispositive, however, as it did not involve a faulty indictment. In Yount the defendant was charged with involuntary manslaughter. At the defendant’s request, the trial court submitted a charge on the lesser included offense of driving while intoxicated, a misdemeanor. The jury found the defendant guilty of the misdemeanor. The defendant then motioned to set aside the judgment on the ground that the statute of limitations had run on the misdemeanor offense.

7 . Other provisions in Chapter 12 designate the periods of limitation applicable to particular offenses. Tex.Code Crim.Proc.Ann. arts. 12.01, 12.02, 12.03.

8 . A further question is when or whether a defendant must object to the failure of proof that the offense occurred within the limitation period. More specifically, can a defendant waive or forfeit proof that the offense occurred within the limitation period? We do not decide this question today as it is not raised by the facts in this case.

9 . Appellee's claim was one of a defect of pleading. Appellee alleged in his motion to dismiss that the indictment showed on its face that the offense was not committed within the period of limitation. He began his argument in the hearing on his motion by stating "our motion is addressing the validity of the indictment.” The State responded in part that "any defects as to the indictment have been waived.” Appellee quoted from a pre-amendment case which held that an “indictment ... which was returned [beyond the limitation period] and which did not allege facts which would toll statute of limitations was insufficient to vest court [sic] with jurisdiction.” As previously stated in this opinion, indictment defects are no longer jurisdictional.

10 .It might be argued that limitations could be likened to an element of the offense, at least in some respects. While article 21.02 provides that the State must set forth the offense in the indictment, the failure to allege an element of the offense is subject to the waiver provisions in article 1.14. Studer, supra. This does not excuse the State, however, from proving all of the elements of the offense. See Fisher v. State, 887 S.W.2d 49 (Tex.Crim.App.1994).