State v. Yount

853 S.W.2d 6, 1993 Tex. Crim. App. LEXIS 52, 1993 WL 44424

• Court: Court of Criminal Appeals of Texas
• Decided: February 24, 1993
• Docket: 093-92
• Status: Published

Opinions

BAIRD, Judge,

concurring.

For the following reasons, I concur in the result only.

I.

As this is a case of first impression, the majority correctly seeks guidance from other jurisdictions. However, the majority omits from its discussion two cases which I feel are essential to the disposition of the State’s question for review.¹ The first case is Askins v. United States, 251 F.2d 909 (D.C.Cir.1958). Askins was indicted for first degree murder, an offense for which there was no statute of limitations, and the prosecutor requested and received a charge on second degree murder, a lesser included offense. Askins v. United States, 231 F.2d 741 (D.C.Cir.1956). See also, United States v. Williams, 684 F.2d 296, 299 (Fourth Cir.1982). Askins was convicted of second degree murder. Askins attacked his conviction, alleging it was barred by the statute of limitations. The Court of Appeals agreed and reversed the conviction.

A nearly identical situation was presented in Williams. Williams was charged with first degree murder and convicted of second degree murder. However, Williams requested the instruction on the lesser included offense. On appeal, Williams contended the offense was barred by the statute of limitations but the Court denied relief, because Williams, not the prosecutor, requested the limitations-barred offense. Williams, 684 F.2d at 298-299.

In distinguishing the two cases, the Williams Court focused on who requested the lesser included offense and noted:

... Obviously there could be no claim of waiver by Askins because it appears he was content with his insanity defense. It was the government that did not wish to run the risk of an all or nothing verdict on the charge of first degree murder.

Id. at 299.

However, in relation to Williams’ request, the Court held:

In the present case Williams received the charge he requested, and he was convicted of the lesser included offense contained therein. Murder in the first degree is a capital offense for which there is no statute of limitations. If the court had not given the requested lesser included offense charge, Williams would have been in the unenviable position of facing a verdict of guilty or not guilty on a capital offense. The requested charge was certainly in Williams’ best interest under the circumstances. He requested the charge, did not object to the charge, was convicted under the charge and, in all probability, benefited from the charge. He cannot now complain of the result and his actions obviously constitute a waiver of the time limitation contained in [18 U.S.C.] § 3282.

Id. at 299-300.

I believe the distinction between Williams and Askins is controlling and in accord with the authority relied upon by the majority.² Pages 8-9. Consequently, utilizing these two cases, I would take this opportunity to establish the following bright line rule: When a defendant requests and receives a charge on an offense barred by the statute of limitations, he is estopped from later asserting the limitations bar.³ However, if the State requests and receives a charge on a limitations-barred offense, the defendant is not es-topped from later asserting the limitations bar. In the instant case, because appellee requested the limitations-barred offense, the majority correctly concludes the trial judge erred in setting aside the original judgment. Pages 9-10.

This bright line rule would solve at least two current problems not resolved by the majority. First, the rule would resolve ap-pellee’s contention that, by accepting the State’s argument, "... in future cases where the statute of limitations has already expired on lesser included offenses, the State could purposefully charge defendants with the greater offense as a means of circumventing the statute of limitations applicable to the time-barred offense.” Page 7.⁴ In addressing a similar concern, the Askins Court noted:

To hold otherwise would be tantamount to allowing the prosecuting officer to determine whether or not the statute of limitations should or should not be applicable.

* ⅜ * ⅜ * *

A jury has said this man is not guilty of murder in the first degree and, therefore, he is entitled to every benefit to which any one else can be entitled who is also only guilty of murder in the second degree. This right of equal protection may not be taken away by the State choosing to proceed with the prosecution by some method which will deprive him of the benefit of the statute of limitations while others guilty of the like offense may have the benefit of the statute of limitations because the State has chosen to proceed with the prosecution by a different method.

Askins, 251 F.2d at 911, n. 2 (quoting Mitchell v. State, 157 Fla. 121, 25 So.2d 73, 75 [1946]).

Second, by holding a defendant’s request for the limitations-barred offense waives the statute of limitations, we avoid “... the alternative evils of misleading the jury or denying a defendant an instruction that he desires and would be entitled to, but for the bar of limitations.” United States v. DeTar, 832 F.2d 1110, 1115 (9th Cir.1987). See also, State v. Lambrechts, 585 A.2d 645 (R.I.1991); and, Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984).

The foregoing bright line rule would allow the defendant an instruction that he desires and would be entitled to, but for the bar of limitations, and prevents the State from circumventing the statute of limitations by purposefully over-pleading its case.

II.

Finally, I believe the majority’s reliance on Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), is misplaced. In Studer, we interpreted Tex.Code Crim.Proc.Ann. art. 1.14 and Art. 5, § 12(b) of the Texas Constitution. We concluded jurisdiction was conferred upon the trial court by the presentment of a charging instrument and any defect or irregularity in the charging instrument must be raised before trial. Studer, 799 S.W.2d at 273.

Studer is inapplicable in the instant case because neither party contends the trial court lacked jurisdiction or that the indictment was defective. Indeed, the majority concedes the indictment was not subject to a pre-trial challenge:

... Before trial, appellee could not attack the indictment on limitations grounds because the indicted offense (involuntary manslaughter) was not time-barred.

Page 8. Rather, the majority concludes appellee appropriately informed the trial court of the limitations bar after the verdict was returned “by way of a motion to set aside the judgment.” Id.5 Therefore, the majority’s reliance on Studer is wholly misplaced.⁶

With these comments, I concur only in the result.

MILLER and MALONEY, JJ., join this opinion.

1 . The State’s question for review asks:

By specifically requesting an instruction on a lesser included offense and invoking the benefit of that instruction, is the appellee es-topped from complaining, upon his conviction for the lesser included offense, that the statute of limitations has expired on that offense?

State’s petition, pg. 3.

2 . In fact the Court in United States v. DeTar, 832 F.2d 1110 (9th Cir.1987), expressly adopted the rationale in Williams:

... We prefer, however, the rule adopted by the Fourth Circuit in United States v. Williams, 684 F.2d 296, 299-300 (4th Cir.1982). There the court held that a defendant who had requested and received an instruction on a lesser included offense, and had been convicted of it, had waived the bar of limitations by his conduct.

DeTar, 832 F.2d at 1115.

3 . This portion of the bright line rule is consistent with the plurality holding in Lee v. State, 818 S.W.2d 778 (Tex.Cr.App.1991), where we held the defendant was estopped from challenging the sufficiency of the evidence to support his conviction on a lesser included offense which he had requested. Id. at 781.

4 . As noted above, the majority recognized appel-lee’s contention but did not later address it.

5 . The dissent concludes the statute of limitations no longer deprives the trial court of jurisdiction. Judge Clinton continues: ‘This is to say, unless raised in the trial court in a timely manner, limitations will not operate to divest the trial court of authority to convict.” Page IS (Clinton, J., dissenting). However, Judge Clinton then states: “Yet Judge Baird also concludes that a limitations defense can be waived, without ever explaining the anomaly of holding that a jurisdictional matter can be subject to waiver.” Id. at n. 5.

Unfortunately, Judge Clinton misses the point of part II. of my concurring opinion. The question of whether a limitations issue is jurisdictional or a defense has been the subject of some debate for many years as documented by both the majority and dissenting opinions and there is no need to unnecessarily elongate that discussion. However, it is clear from our opinions today that limitations can be waived if not timely asserted. This conclusion is consistent with the comment in the dissent that limitations "is more in the nature of an affirmative defense to prosecution, to be invoked at the option of the defendant; but that it does not otherwise deprive the trial court of authority to convict.” Page 13 (Clinton, J., dissenting) (citing United States v. Wild, 551 F.2d 418 (C.A.D.C.1977)). Indeed the dissent notes that I describe this as "a limitations defense.” However, the limitations bar is better explained as being in "the nature of’ a defense. Clearly, no one today argues it should be treated as an affirmative defense under Tex.Penal Code Ann. § 2.04.

It is clear to me that Studer is inapplicable in the instant case because the validity of the charging instrument has not been contested. Indeed, the majority concedes the indictment was not subject to being attacked. Furthermore, as this case demonstrates, the issue of limitations may not be cognizable until after trial has begun. Therefore, it cannot be raised before trial as required by Studer.

6 . The majority concludes its discussion of Stu-der with the following statement:

... Therefore, 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.

Page 8. (Footnote omitted.)

Because the majority’s reliance on Studer is misplaced, this statement is nothing more than obiter dictum.