William Joseph Lee v. State

• Court: Court of Appeals of Texas
• Decided: May 27, 2015
• Docket: 09-13-00569-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________

NO. 09-13-00569-CR ____________________

WILLIAM JOSEPH LEE, Appellant

V.

THE STATE OF TEXAS, Appellee ___________________________________________________________________

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 13-09-10178 CR ___________________________________________________________________

MEMORANDUM OPINION

A jury convicted William Joseph Lee of failure to register as a sex offender.

The trial court found two enhancement paragraphs to be “true” and sentenced Lee

to thirty-six years in prison. In two appellate issues, Lee contends that (1) the

statute of limitations had run for failure to register as a sex offender; and (2) the

trial judge who assessed punishment missed part of the trial and failed to review

the record from the missed proceedings. We affirm the trial court’s judgment.

1 Statute of Limitations

In issue one, Lee contends that his prosecution for failure to register as a sex

offender is barred by the three-year statute of limitations. If the defendant fails to

object to the indictment “before the date on which the trial on the merits

commences,” (emphasis added) the complaint is waived and may not be raised on

appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005). A “‘trial on the

merits’ begins when the jury is impaneled and sworn.” Sanchez v. State, 138

S.W.3d 324, 329 (Tex. Crim. App. 2004). In this case, on the same day that the

jury was empaneled and sworn, Lee moved to quash the indictment on statute of

limitations grounds. Thus, Lee waived his complaint and we overrule issue one.

See Tex. Code Crim. Proc. Ann. art. 1.14(b); see also Ex parte Heilman, 456

S.W.3d 159, 168 (Tex. Crim. App. 2015) (A limitations defense is a forfeitable

right.); Sanchez, 138 S.W.3d at 329.

Punishment

In issue two, Lee complains that the trial court failed to consider all the

evidence when assessing punishment. According to the record, Lee collapsed

during his testimony at the guilt/innocence phase of trial. Lee’s counsel objected to

a continuance and sought a mistrial. The Honorable P.K. Reiter informed the

parties that the Honorable Lisa Michalk could complete the trial. Lee argued that

2 changing judges would be unduly prejudicial because he chose to have Judge

Reiter assess punishment and would have wanted the jury to assess punishment

had he known Judge Michalk would be presiding. Judge Reiter recessed the trial

and agreed to preside over the punishment phase. In response to Lee’s concerns

that he would miss the remainder of Lee’s testimony, Judge Reiter stated that he

could read a transcript of the testimony.

During punishment, Judge Reiter stated that he would consider all the

evidence that he heard “to the point to which [Lee] fell out on the afternoon of

October 9th[.]” Lee testified at length during the punishment phase of trial. The

record does not indicate that Lee objected to Judge Reiter presiding over the

punishment phase or to Judge Reiter’s comment regarding which evidence he

intended to consider. Having failed to make a timely and specific objection, Lee

has failed to preserve issue two for appellate review and we overrule it. See Layton

v. State, 280 S.W.3d 235, 239 (Tex. Crim. App. 2009) (“A specific objection is

necessary to inform the trial judge of the issue and basis of the objection, and to

allow the judge a chance to rule on the issue at hand.”); see also Tex. R. App. P.

33.1(a)(1)(A). We affirm the trial court’s judgment.

3 AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on May 18, 2015 Opinion Delivered May 27, 2015 Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.