Van Hoang v. State

939 S.W.2d 593, 1996 Tex. Crim. App. LEXIS 236, 1996 WL 668597

• Court: Court of Criminal Appeals of Texas
• Decided: November 20, 1996
• Docket: 326-95
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of the offense of aggravated robbery and his punishment assessed at forty years confinement in the penitentiary. He raised only one point of error on appeal, that the trial court erred in failing to submit to the jury his requested instruction defining the phrase “on or about” to mean “any date prior to the presentment of the indictment within the period of the statute of limitations^]” and informing the jury that period of limitations for the offense of aggravated robbery is five years. The Fifth Court of Appeals affirmed the conviction in an unpublished opinion, holding that appellant was not entitled to a limitations instruction because “the issue of limitations was not raised in this case.” Hoang v. State, No. 05-92-02129-CR, 1994 WL 722006 (Tex.App.—Dallas, delivered December 29, 1994) (Slip op. at 3). We granted appellant’s petition for discretionary review to examine his contention that the court of appeals has misconstrued the caselaw regarding the necessity of a limitations instruction. Tex.R.App. Pro., Rule 200(c)(3).

I.

The offense in this cause was committed on January 29, 1986. The instant prosecution took place in August of 1992.¹ At the conclusion of the State’s direct examination of its first witness in this cause, the trial court sua sponte excused the jury from the jury box and called it to the parties’ attention that the indictment on its face alleged an offense that was barred by limitations, without also alleging facts sufficient to toll the running of the five year limitations period. See Articles 12.01(4) & 12.03(d), V.A.C.C.P. The trial court was concerned that this deficiency in the pleading might deprive it of jurisdiction. After a short recess, however, the trial court announced that on the authority of Studer v. State, 799 S.W.2d 263 (Tex.Cr. App.1990) and Burton v. State, 805 S.W.2d 564 (Tex.App.- Dallas, 1991), it was confident that it still retained jurisdiction over the cause. In the course of the discussion, in the absence of the juiy, the trial court remarked that the present indictment contained a notation at the top indicating it was a “reindictment.” The trial court concluded, “This is a reindietment of one returned on August 21st, 1990 which would have been within the limitation period by approximately four months[.]” In the record on appeal, in a supplemental transcript, there indeed appears an earlier indictment alleging an aggravated robbery of the same victim in identical terms.² It was never established in the presence of the jury, however, that this earlier indictment existed.

At the close of all the evidence the trial court expressly denied appellant’s request for “a charge on the statute of limitations. * * * I (jon’t think that’s been raised before the jury.” Appellant then proposed that the jury be instructed:

“that the term ‘on or about’ means any date prior to the presentment of the indictment within the period of limitations. You’re further instructed that the statute of limitations for the offense of aggravated robbery is five years.”

The trial court gave neither this nor any comparable jury instruction.³ Appellant raised the trial court’s refusal as his only point of error on appeal.

The court of appeals held the trial court had not erred to deny appellant’s instruction because “the issue of limitations was not raised in this case.” Hoang v. State, supra (Slip op. at 3). Taking note of the trial court’s observation that the present indictment was a reindictment of an earlier charge that was filed within the limitations period, the court of appeals observed additionally that the original indictment was not dismissed until after appellant was convicted on the reindictment. Because these facts were undisputed, and because under Article 12.05(b), V.A.C.C.P., the statute of limitations would be tolled during the pendency of the original, timely-filed indictment, the court of appeals held that appellant was not entitled to a limitations instruction. For the proposition that an instruction is not required whenever the facts showing a tolling of the limitations period are not in dispute, the court of appeals relied upon this Court’s opinion in Ex parte Morin, 172 Tex.Cr.R. 322, 356 S.W.2d 689 (1962).

In his petition for discretionary review appellant now contends that the court of appeals’ holding conflicts with caselaw, both early and late, that establishes that the “burden is on the state to show that the offense was committed within the period of limita-tion_” Lemell v. State, 915 S.W.2d 486, 489 (Tex.Cr.App.1995), quoting Donald v. State, 165 Tex.Cr.R. 252, 255, 306 S.W.2d 360, 362 (1957). Appellant argues, in essence, that the State must discharge this burden before the jury, and that incidentally noticing facts adequate to toll limitations in the course of a bench conference will not satisfy the State’s burden. We are constrained to agree.

II.

"When an indictment on its face clearly alleges an offense committed 'within the applicable statute of limitations, the issue is not raised and the trial court need not instruct the jury. Vincent v. State, 10 Tex.App. 330, 333 (1881) (“if the evidence raises and could possibly raise no issue upon that subject, the court is not bound to charge upon it.”); Hoy v. State, 11 Tex.App. 32, 33 (1881) (same); Cohen v. State, 20 Tex.App. 224, 229 (1886) (same). On the strength of these cases, this Court subsequently held that if the State’s proof before the jury is uncontested, and logically establishes that the indictment was timely presented, then a juiy instruction on limitations is unnecessary. Gray v. State, 68 S.W. 799 (Tex.Cr.App.1902); Ex parte Morin, supra. However, none of these cases supports the proposition the court of appeals cited Morin for. We have not yet decided explicitly whether uncontested proof of facts that would toll the running of the limitations period is sufficient to obviate the need for a jury instruction if that evidence is presented only to the trial court, not the jury. Nevertheless, the cases are instructive.

Prior to 1985, an indictment that did not reflect on its face an offense committed within the applicable limitations period, and also faded to allege tolling facts, was insufficient to vest the trial court with jurisdiction over the cause. Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977). After this Court’s construction of the 1985 amendments to Article V, § 12 of the Texas Constitution and Article 1.14(b), VAC.C.P., in Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), we held that limitations defects in an indictment would no longer operate to deprive the trial court of jurisdiction. State v. Yount, 853 S.W.2d 6, 8 (Tex.Cr.App.1993). Accordingly, we held in State v. Turner, 898 S.W.2d 303, 306 (Tex.Cr.App.1995), that under Article 1.14(b) a defendant must object before the date of trial to an indictment that shows on its face a limitations-barred offense, or else he cannot thereafter complain, on appeal or collateral attack, of the defect.

We took pains to insist in Turner, however, albeit arguably in dicta, that a failure to preserve a limitations defect in the indictment does not excuse the State from its burden of proving, at the trial on the merits, that the offense was in fact committed within the applicable statute of limitations. 898 S.W.2d at 308. Even if the defendant forfeits any claim against the indictment by failing to raise it timely in the trial court under, Article 1.14(b), he may still argue on appeal that the State failed to prove an offense that was committed within the limitations period. In this respect we likened proof of a timely indictment with proof of an element of the offense. Failing to allege every requisite element of an offense no longer divests the trial court of jurisdiction over the cause, after Studer. Still, that does not excuse the State from the burden to prove every requisite element at trial in order to obtain a. valid conviction. Fisher v. State, 887 S.W.2d 49 (Tex.Cr.App.1994). Likewise, we said in Turner, it is the State’s burden of proving the indictment was timely presented. 898 S.W.2d at 308.

If our observation in Turner amounted to mere dicta, it was soon elevated to a full-blown holding in Lemell v. State, 915 S.W.2d 486, at 488 (Tex.Cr.App.1995). There we squarely held that “[w]hile his failure to object in a timely manner to the indictment waived appellant’s claim as to any limitations defect in the indictment, it did not waive his limitations claim as to the insufficiency of the evidence to sustain the conviction.” En route to that conclusion we observed:

“when appellants have alleged that the State failed to meet its burden of proof at trial regarding limitations, we have treated their claims like insufficiency of evidence claims. Barnes [v. State], 824 S.W.2d [560] at 562 [ (Tex.Cr.App.1992) ] (affirming acquittal of appellant due to insufficient limitations evidence); Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App.1975) (holding limitations evidence insufficient); Carter v. State, 506 S.W.2d 876, 879 (Tex.Cr.App.1974) (holding limitations evidence sufficient); Mulvehill v. State, 395 S.W.2d (Tex.Cr.App.1965) (holding limitations evidence sufficient).”

Lemell v. State, supra, at 489. To say that proof of limitations implicates “sufficiency of the evidence” is strongly to suggest that it is an issue to be resolved by the jury. After all, in a jury trial it is the jury’s verdict of guilty that is measured for legal “sufficiency.” And indeed, at least as early as Wimberly v. State, 22 Tex.App. 506, 3 S.W. 717 (1886), it was held that when the issue of limitations is raised, the jury instructions must be adequate to authorize the jury to pass on it. The State would have us consider limitations as if it were a preliminary question for the trial court to resolve, under Tex.R.Cr.Evid., Rule 104. But Texas law has always regarded limitations as an issue for the jury, at least once it is raised.

In Turner we pointedly declined to specify whether limitations “is viewed as a defense, whether it is similar to an element of the offense, or whether it is simply sui generis _” 898 S.W.2d at 808. Without ultimately passing on that question here, we do observe that in some respects we have treated limitations much like what the present penal code defines as a “defense.” See V.T.CA Penal Code, § 2.03. A jury instruction is not required unless the indictment on its face raises, or some aspect of the State’s evidence calls into question, whether the indictment was timely presented. Once the issue is thus raised, however, the State must prove beyond a reasonable doubt that the prosecution is not limitations-barred.⁴

In the instant cause, though the indictment was sufficient to vest the trial court with jurisdiction under Turner, it nevertheless on its face clearly alleged an offense barred by limitations. Moreover, the evidence as presented to the jury confirmed that the offense was committed on the date alleged (January 29, 1986), while the date of presentment of the indictment (August 7, 1992) was clearly beyond the five year period of limitations applicable to aggravated robbery. The State produced no evidence before the jury to toll the running of the statute. On this state of the record, limitations was raised and the State was put to its burden to prove the indictment was not untimely.

Nor does it do to say the trial judge was aware of facts, even if undisputed, sufficient to toll the statute, and that he could have judicially noticed those facts and instructed the jury accordingly pursuant to Tex.R.Cr. Evid., Rule 201(b)(2) and (g).⁵ The fact is that he did not, and thus the issue was never presented for resolution by the jury. Nor does it avail the State to argue that, had the trial court submitted appellant’s requested instruction, it would most likely have allowed the State to reopen its evidence and establish the same undisputed tolling facts before the jury that the trial court serendipitously discovered during the bench conference. Article 36.02, VAC.C.P. For the State requested no such reopening of the evidence here, and, as the case went to the jury, there was no evidence to refute the apparent fact that appellant was indicted after the expiration of the applicable period of limitations. We hold that appellant was entitled to a jury instruction on the statute of limitations, Wimberly v. State, supra, and the court of appeals abused its discretion to conclude otherwise.

Because appellant raised the issue in the trial court, we must examine the trial court’s error under the “some” harm standard of Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985) (Opinion on State’s motion for rehearing). Arline v. State, 721 (Tex.Cr.App.1986). As the record stands, had the trial court instructed the jury on the statute of limitations, the jury would have had no choice but to acquit appellant, since the only evidence before the jury showed a limitations-barred offense. Surely the certainty of an acquittal suffices to establish “some” harm. However, because it is not ordinarily this Court’s bailiwick to pass upon questions of harm in the first instance, e.g., Owens v. State, 827 S.W.2d 911, 917 (Tex.Cr.App.1992); Saenz v. State, 843 S.W.2d 24, 29 (Tex.Cr.App.1992), we will remand the cause to the court of appeals.

Accordingly, the judgment of the court of appeals is vacated and the cause remanded to that court for an assessment of “some” harm, vel non, under the Almanza/Arline standard.

WHITE, J., dissents. KELLER, J., not participating.

1 . In fact, appellant was originally convicted of this offense in 1986, and served four years in the penitentiary for it, until he successfully petitioned this Court for relief in post-conviction habeas corpus. We held that the district court that convicted appellant lacked jurisdiction because he had been only seventeen at the time, and the juvenile court had not relinquished its exclusive jurisdiction over him. See Hoang v. State, 872 S.W.2d 694, at 696 (Tex.Cr.App.1993).

2 . The only difference is that the "reindictment” alleges the offense occurred "on or about” January 29, 1986, whereas the earlier indictment alleged January 1, 1986. Given our ultimate disposition of this cause, we need not address this discrepancy.

3 . Appellant failed to request a further instruction authorizing the jury to acquit him in the event it found the State did not establish that the offense occurred within the five year limitations period. The court of appeals did not notice this fact, however, and therefore did not consider the question whether it might constitute a procedural default of appellant’s claim on appeal. Cf. Stiles v. State, 520 S.W.2d 894, 896-97 (Tex.Cr.App.1975) (requested instruction need not be correct in all things in order to preserve error for appeal, so long as it was sufficient to alert trial court to the defect); Stone v. State, 703 S.W.2d 652, 655 (Tex.Cr.App.1986) (same). Because the court of appeals did not address the question of procedural default, it is not before us today.

4 . That limitations operates more like a defense than an element of the offense is underscored by our holdings that if the State's proof of a timely indictment is uncontested, then no jury instruction is required. See Gray v. State and Ex parte Morin, both supra. The State has the burden of production and persuasion as to an element of the offense. Moreover, we would never approve of a trial court failing to submit an element of the offense in the jury charge just because the State’s evidence establishing that element was not disputed.

5 . Those provisions read:

“(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is ... (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

* * * * * *

"(g) Instructing jury. The court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.”