Gallardo v. State

• Decision Date: 29 March 1989
• Docket Number: No. 04-88-00248-CR,04-88-00248-CR
• Citation: 768 S.W.2d 875
• Parties: Gary David GALLARDO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 875

768 S.W.2d 875

Gary David GALLARDO, Appellant, v. The STATE of Texas, Appellee.

No. 04-88-00248-CR.

Court of Appeals of Texas,

San Antonio.

March 29, 1989.

Raymond Angelini, Angelini & Macrae, San Antonio, for appellant.

Fred G. Rodriguez, Jay Brandon, Criminal Dist. Attys., San Antonio, for appellee.

Before BUTTS, CARR and ONION, ^* JJ.

OPINION

ONION, Assigned Justice.

This appeal is taken from a conviction for aggravated rape of a child under former Sections 21.03 and 21.09 of the Texas Penal Code (repealed in 1983). The jury, having found the appellant guilty, assessed his punishment at 99 years' confinement in the department of Corrections, and in addition assessed a $10,000.00 fine.

At the outset we are confronted with appellant's initial contention on appeal that the trial court erred in denying his motion to dismiss the indictment as the prosecution was barred by the statute of limitations. The State takes the position that the applicable statute of limitations is the ten year one for the specially enumerated offense of sexual assault under TEX.PENAL CODE ANN. § 22.011(a)(2). See TEX.CODE CRIM.PROC.ANN. art. 12.01(2)(D) as amended in 1987. The State urges the trial court ruled correctly on appellant's motion.

The indictment presented for the first time on January 20, 1988, alleged that the offense of aggravated rape of a child occurred "on or about the 1st day of December, A.D. 1982."

At the time of the alleged offense TEX.PENAL CODE ANN. § 21.09 proscribed the rape of a child, a second degree felony. The indictment alleged, however, that the complainant was younger than fourteen years of age which elevated the offense to a first degree felony under TEX.PENAL CODE ANN. § 21.03(5) (aggravated rape) in effect at the time.

At the time of the alleged offense it is undisputed that the applicable statute of limitations for the offenses of rape of a child or aggravated rape of a child was three years. This is so because in 1982 neither offense was specifically enumerated in the statute of limitations (TEX.CODE CRIM.PROC.ANN. art. 12.01) and therefore fell under the catch-all portion of the statute for "all other felonies" which provided for a three year statute of limitation period from the date of the commission of the offense. ¹

For years in Texas the offense of "rape" carried with it a one year period of limitation. See TEX.CODE CRIM.PROC. art. 178 (1925); TEX.CODE CRIM.PROC.ANN. art. 12.02 (1965); See also Norman v. State, 91 Tex.Crim. 486, 239 S.W. 976 (1922); Gonzales v. State, 62 S.W. 1060 (Tex.Crim.App.1901); Carr v. State, 36 Tex.Crim. 390, 37 S.W. 426 (1896); Anschicks v. State, 6 Tex.Cr.R. 524 (1879).

With the enactment of the 1974 Penal Code sexual offenses including rape, rape of a child, sexual abuse, etc. were incorporated in Chapter 21 thereof. In a conforming amendment Article 12.01 of the Code of Criminal Procedure was amended and it provided felony indictments may be presented within the enumerated limits and not afterward "(4) one year from the date of the commission of the offense; any felony in Penal Code Chapter 21 (Sexual Offenses)" (Acts 1973, 63rd Leg. p. 975, ch. 399, § 2(B), eff. Jan. 1, 1974).

However, at the next session of the Legislature said Article 12.01 was again amended. The above quoted subsection (4) was deleted entirely and subsection (4) (the "all other felonies"--three years limitation) became the new subsection (5). (Acts 1975, 64th Leg. p. 478, ch. 203, § 5, eff. Sept. 1, 1975). Thus for the first time in many a year neither "rape" nor sexual offenses were specifically enumerated in the statutes and fell under the three year period of limitation. This was the law at the time of the alleged offense in the instant case (on or about December 1, 1982).

In 1983, after the date of the alleged offense in the instant case, the said Article 12.01 was again amended in a separate bill (S.B. 343) independent of other pending legislation in the 68th Legislature. Subsection (C) was added to Section 3 of the said Article 12.01 as follows, in pertinent part:

(3) five years from date of the commission of the offense:

(A) ...

(B) ...

(C) rape, aggravated rape, sexual abuse, rape of a child, sexual abuse of a child....

(Acts 1983, 68th Leg. p. 413, ch. 85, eff. Sept. 1, 1983). ²

Prior to the effective date of such legislation the previous three year limitation then applicable in the instant case had not expired. It is well established in Texas that a statute extending the period of limitation applies to all offenses not time-barred at the time of the passage of the act so that a prosecution may be commenced at any time within the new duly established period, although the old period of limitation has then expired. Lindsey v. State, 760 S.W.2d 649 (Tex.Crim.App.1988); Archer v. State, 577 S.W.2d 244 (Tex.Crim.App.1979); see also Rose v. State, 716 S.W.2d 162 (Tex.App.--Dallas 1986); 21 AM.JUR.2d, Criminal Law, § 224, pp. 410-411. Cf. however, Rubin v. State, 390 So.2d 322 (Fla.1980).

Statutes of limitations, being measures of public policy subject to the will of the legislature, may be changed or repealed without violating constitutional provisions against ex post facto laws in any case where a right to acquittal has not been absolutely acquired by the completion of the period of limitations. However, a prosecution barred by a statute of limitations cannot be revived by the passage of a statute extending the period of limitations since this would give the act an ex post facto operation. 21 TEX.JUR.3d, Criminal

Law, § 1625, p. 433-434.

Appellant does not disagree with Archer and like cases, but that does not end the story. Independently coursing through the 1983 legislative session at the time as S.B. 343 was H.B. 2008 which brought about dramatic changes important to the question before us. (Acts. 1983, 68th Leg. p. 5311, ch. 977, eff. Sept. 1, 1983). ³

H.B. 2008 repealed the offenses of rape, aggravated rape, rape of a child, sexual abuse, aggravated sexual abuse and sexual abuse of a child which formerly had been collected in Chapter 21 of the Penal Code as sexual offenses. New assaultive offenses were created, renamed and added to Chapter 22 of the Penal Code. Sexual assault became § 22.011 and aggravated sexual assault became § 22.021. H.B. 2008 stated that it intended to redefine the offenses as assaultive, revising the elements of, penalties for, and period of limitation applicable to the new offenses.

Section 12 of H.B. 2008 provided expressly that §§ 21.02, 21.03 (aggravated rape), 21.04, 21.05, 21.09 (rape of a child), 21.10 and 21.12 of the Penal Code were repealed.

H.B. 2008 further provided:

Sec. 13

(a) The change in the law made by this Act applies only to an offense committed on or after the effective date of this Act.

(b) An offense committed before the effective date of this Act is covered by the law in effect at the time the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section an offense is committed before the effective date of this Act if any element of the offense occurs before the date.

(emphasis supplied)

It is thus clear that sections 21.03 and 21.09 under which appellant was eventually charged was repealed by Section 12 of H.B. 2008, but such law was continued by Section 13 for all offenses committed before the effective date of the Act (Sept. 1, 1983). In the instant offense alleged to have occurred on December 1, 1982, appellant could have only been prosecuted for "rape of a child" or "aggravated rape of a child" but not for the newly created assaultive offenses. He was prosecutable under the former statutes and their elements, penalties, etc. and subject to the parole law eligibility law at the time of the offense or offenses. See Ex parte Alegria, 464 S.W.2d 868 (Tex.Crim.App.1971).

H.B. 2008 also provided, most importantly, that Article 12.01 of the Code of Criminal Procedure was to be amended again by adding another Section 3(C) providing a five year period of limitation for the new offenses of sexual assault.

Thus, Article 12.01 ended up with two sections "3(C)," one created by S.B. 343 and another by H.B. 2008, each bringing different enumerated offenses under the five year period of limitation. There was no conflict between the sections, and the only duplication was in section or subsection numbers. This sometimes happens when two different bills independently amend the same statute in the same legislative session.

In 1985, the said Article 12.01 again underwent legislative surgery. The first section 3(C) relating to the five year period of limitation for the repealed offenses of rape, aggravated rape, sexual abuse, aggravated sexual abuse, rape of a child and sexual abuse of a child was struck and deleted from the statute. The second section 3(C) relating to sexual assault was left in place, but the offense of "indecency with a child" was added thereto. (Acts 1985, 69th Leg. p. 1393, ch. 330, H.B. 1149, eff. Aug. 26, 1985).

It is appellant's argument that upon the effective date of this latter Act that the offense with which appellant was subsequently charged was no longer specifically enumerated in the statute of limitation providing for a certain period of limitation, and thus, fell into the "all other felonies" provision and the three year limitation period. See TEX.CODE CRIM.PROC.ANN. art. 12.01(4). The State contends however, the offense of aggravated rape of a child continued in the five year limitation period because it fell within the scope of specifically enumerated offense of sexual assault in the remaining section 3(C) of Article 12.01.

In 1987, the felony statute of limitations (article 12.01) was again changed by H.B. 494, an act relating to period of limitation for the offense of sexual assault (which itself was again amended in 1987). H.B. 494 amended section 2 of Article 12.01 providing for a ten year period of limitation by adding...