Floyd v. State

BAIRD, J.,

delivered a dissenting opinion,

OVERSTREET, J., joins.

Believing the opinion of the Court violates the Ex Post Facto Clauses of the United States and Texas Constitutions, I dissent. U.S. Const, art I, § 10; and, Tex. Const, art. I, § 16.

Lemell v. State, 915 S.W.2d 486 (Tex.Crim.App.1995), was the law at the time of appellant’s trial and appeal. That case was consistent with nearly one hundred years of case-law.1 In Lemell, the defendant alleged the evidence was insufficient to prove the offense was committed within the statute of limitations period. We clarified the distinction between an indictment that is defective because it does not on its face allege an offense within the limitations period, and the failure of the evidence to prove the offense occurred within the limitations period. As to an indictment defect, failure to timely object prior to trial forever waives the defect. As to the failure of proof at trial, we pointed to the following well-established principles from long-standing precedent:

The State has the burden to prove that the offense was committed within the statute of limitations period, [citations omitted] We also have held that the State need not prove the date alleged in the pleading so long as the proof at trial shows that the offense occurred within the applicable limitations period.... A defendant’s failure to object to a limitations defect on the face of the indictment does not relieve the State of its burden of proving at trial that the alleged offense occurred within the limitations period. Moreover, when appellants have alleged that the State failed to meet its burden of proof at trial regarding limi*276tations, we have treated their claims like insufficiency of evidence claims.

Id. at 489 (citations omitted)(emphasis added). Thus, the burden was on the State to prove at trial that the offense occurred within the statute of limitations period, or that there was tolling. Failure of the State to meet its burden did not need to be objected to at trial; it could be raised for the first time on appeal, at which time a defendant could complain about the failure in an insufficiency of the evidence-type claim.

The Court of Appeals in the instant case followed controlling precedent:

The State argues that, because Floyd did not object to the indictment on the ground that it was barred by limitations, he waived the limitations defense. The failure to timely object to the indictment waives a claim of a limitations defect in the indictment; it does not waive a claim that the evidence is insufficient to support the conviction because it shows that limitations has run. Lemell v. State, 915 S.W.2d 486 (Tex.Crim.App.1995). Floyd specifically attacked the sufficiency of the evidence because it showed limitations had run. The undisputed evidence shows that limitations had run. That being true, we must reverse the judgment and order an acquittal in this case.

Floyd, 914 S.W.2d at 658.

However, a hundred years of precedent, Lemell included, was overruled subsequent to the trial in the instant case and subsequent to the Court of Appeals’ opinion. See, Proctor v. State, 967 S.W.2d 840 (Tex.Crim.App.1998). Under the new law, the statute of limitations is a “defense” which “is forfeited if not asserted at or before the guilt/innocence stage of trial.” Id. at 844. In Proctor, the defendant’s claim that the offense was not proven to have occurred within the limitations period was procedurally defaulted because he- did not raise it at trial, even though he was not required to object at trial under the law at the time of his trial. Thus, Proctor holds that a defendant procedurally defaults any claim as to a limitations issue by failing to object at trial, even if the law at the time of his trial did not require an objection in order to preserve the issue. What a twisted state of affairs.

Believing the majority’s reliance on Proctor which operates to deprive appellant of a defense which was available at the time the instant offenses were committed, is judicial action which contravenes the Ex post Facto Clauses of the United States and Texas Constitutions, I dissent.

OVERSTREET, J., joins this opinion.

. I mention this fact to point out that appellant had no reason to think he should "raise” the limitations issue. See George e. dix and Robert o. DAWSON, 40 TEXAS PRACTICE, CRIMINAL PRACTICE AND PROCEdure § 3.63 (1998 Supp.)(failure to prove limitations is in nature of evidence insufficiency and there is no requirement that defendant make trial objection to preserve claim for appellate review).