In the Court of Criminal
Appeals of Texas
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No. PD-1092-20
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EX PARTE MAURICE EDWARDS,
Appellant
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On State’s Petition for Discretionary Review
From the First Court of Appeals
Harris County
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YEARY, J., filed a dissenting opinion in which WALKER, J., joined.
We all agree that the indictment in this case appears to show—
on its face—that the offense it charges Appellant with committing is
barred by limitations. It alleges neither any tolling facts nor any of the
specific statutory circumstances, set out in Article 12.01(1)(C)(i) of the
Texas Code of Criminal Procedure, that would take it out of the ordinary
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ten-year limitations period for sexual assault. TEX. CODE CRIM. PROC.
arts. 12.01(1)(C)(i), 12.01(2)(E). This Court has long observed that an
accused may challenge such an indictment in pretrial habeas corpus
proceedings, and it has reiterated that observation even after Proctor v.
State, 967 S.W.2d 840, 843 (Tex. Crim. App. 1998), which held that
limitations is “in the nature of a defense[.]” See Ex parte Tamez, 38
S.W.3d 159, 160 (Tex. Crim. App. 2001) (“[I]f the pleading, on its face,
shows that the offense charged is barred by limitations, then it is
appropriate that habeas corpus relief be granted.”).
In reliance upon Tamez, the court of appeals essentially assumed
without elaboration that the issue is cognizable in pretrial habeas
corpus proceedings, and it proceeded to address the merits. Ex parte
Edwards, 608 S.W.3d 325, 327 n.5 (Tex. App.—Houston [1st Dist.]
2020). And it makes perfect sense, after all. It defeats the whole concept
of limitations to allow a prosecution to proceed apace when the law itself
forecloses even charging the accused with the crime in question, much
less proceeding to try him for it in a court of law.
The fact that it is a statute that forecloses prosecution rather than
a constitutional provision, such as the Double Jeopardy Clause, should
be of no moment. Either way, it is completely irrational to force a
criminal defendant to endure a full-blown trial before he may be afforded
an opportunity to vindicate his lawful right to avoid having to endure a
full-blown trial. But that is what the Court’s opinion today seems to
approve.
The Court invokes Ex parte Smith, 178 S.W.3d 797 (2005), for the
proposition—at least as I understand it—that pretrial habeas will no
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longer be available as a vehicle through which a limitations bar may be
asserted by persons accused of sexual assault—period, ever. Majority
Opinion at 6. The reason the Court gives is simple, if stark. Article
12.01(1)(C)(i) identifies certain circumstances under which there will be
no limitations with respect to sexual assault. So, the Court seems to
conclude, an indictment for sexual assault—even one that wholly fails
to allege any of those circumstances in which no limitations apply to that
offense—still avoids a limitations bar, if only because it could at least
potentially be “repaired” by adding those allegations in response to a
pretrial motion to quash or dismiss. Id. But Smith does not support such
a sweeping and categorical holding.
Smith involved prosecution for an ordinary assault. 178 S.W.3d
at 800. The dates alleged in the information would have indicated that
it was being filed outside the applicable statute of limitations. Id. But
the information also included a tolling paragraph. Id. Smith attempted
to challenge the sufficiency of the tolling paragraph by way of a pretrial
application for writ of habeas corpus. Id. This Court recognized that
pretrial habeas corpus remains an appropriate vehicle for raising a
legitimate limitations challenge. Id. at 802. But it refused to extend
pretrial habeas proceedings to cover Smith’s claim, holding that even a
flawed tolling paragraph would suffice to remove a charging instrument
from the category of those that show on their face that an offense is
barred by limitations. Id. at 803–04. “Only when an indictment shows
on its face that prosecution is absolutely barred by the statute of
limitations, and that pleading is not reparable, may a defendant seek
relief from further prosecution via a pretrial writ of habeas corpus.” Id.
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at 804.
Smith did not involve a wholesale failure to plead a tolling
provision. It likewise did not involve a wholesale failure to plead any
circumstances that would avoid a limitations bar altogether. It is not
analogous, therefore, to the instant case. Here, the State made no
attempt to plead facts in the information to show that Appellant was not
subject to limitations for his particular sexual assault, under the
provisions of Article 12.01(1)(C)(i). There was no faulty pleading of
Article 12.01(1)(C)(i) facts that Applicant could “repair” by filing a
pretrial motion to quash or dismiss the information. There was simply
no Article 12.01(1)(C)(i) pleading at all.
Article 12.01(2)(E) of Code of Criminal Procedure provides that
sexual assault is limitations barred after ten years, “except as provided
by Subdivision (1) or (7).” TEX. CODE CRIM. PROC. art.12.01(2)(E). For all
Appellant (or any of us, for that matter) can tell from the indictment in
this case, the offense he is charged with having committed is limitations-
barred. And such an indictment is plainly “not sufficient” under Article
21.02(6). TEX. CODE CRIM. PROC. art. 21.02(6) (“The time mentioned [in
an indictment] must be . . . not so remote that the prosecution of the
offense is barred by limitation.”). Smith does not establish otherwise. 1
From what I can gather, the Court seems to think that a charging
instrument that alleges a sexual assault that occurred outside of the
1See e.g., Tita v. State, 267 S.W.3d 33, 38 (Tex. Crim. App. 2008)
(distinguishing Smith on the basis that, there, at least a flawed tolling
paragraph was included in the indictment; and reiterating that the total
failure to plead tolling facts will justify dismissal of the indictment
under Article 21.02(6) of the Code of Criminal Procedure).
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ordinary 10-year limitations period, but that alleges no Article
12.01(1)(C)(i) circumstances, is nevertheless immune to a limitations
bar—simply because Article 12.01(1)(C)(i) exists. The Court seems to
conclude that, because the State can invoke Article 12.01(1)(C)(i) at any
time, such a charging information is always “reparable,” and therefore,
the State need not actually allege the exceptional circumstances—
provided by Article 12.01(1)(C)(i)—in order to avoid the ordinary
limitations bar. But it is far from a given in any particular case that the
State will have the wherewithal to prove up those circumstances.
Indeed, Applicant has already brought the deficiency in the
charging instrument in this case to the attention of both State and the
trial court by filing his application for pretrial habeas corpus relief. The
State was given the opportunity to plead exceptional circumstances, and
it seems to have been unable to produce facts sufficient to satisfy the
Article 12.01(1)(C)(i) criteria—at least if we are to credit the court of
appeals’ opinion. See Edwards, 608 S.W.3d at 336–37 (concluding that
the State failed to establish that the results of forensic DNA testing of
biological matter did not match the victim or any other person whose
identify was readily ascertained, as required by Article 12.01(1)(C)(i)).
Rather than hold the issue non-cognizable from the get-go, the Court
today should consider whether the court of appeals was correct on the
merits.
I would affirm the judgment of the court of appeals because the
issue is cognizable in a pretrial habeas corpus proceeding (or at least it
was before the Court’s opinion today), and because the indictment
suggests, on its face, that the offense alleged therein is limitations-
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barred.
Because the Court does not, I respectfully dissent.
FILED: May 4, 2022
PUBLISH