Lindsey v. State

• Decision Date: 20 April 1988
• Docket Number: No. 960-86,960-86
• Citation: 760 S.W.2d 649
• Parties: Johnnie Earl LINDSEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 649

760 S.W.2d 649

Johnnie Earl LINDSEY, Appellant, v. The STATE of Texas, Appellee.

No. 960-86.

Court of Criminal Appeals of Texas En Banc.

April 20, 1988.

OnRehearing Nov. 23, 1988.

C. Wayne Huff, Dallas, for appellant.

Henry Wade, Former Dist. Atty. and John Vance, Dist. Atty., and Kathi Alyce Drew, Dick Miller and Winfield Scott, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Carl E.F. Dally, Sp. Asst., State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

The appellant was convicted of aggravated rape under Penal Code § 21.03. ¹ From an examination of the appellate record in this cause, it appears that appellant was originally indicted on January 3, 1983 in cause number F82-92712, and charged as follows:

JOHNNIE EARL LINDSEY hereinafter styled Defendant, on or about the 25th day of August, in the year of our Lord One Thousand Nine Hundred and 81 in the County and State aforesaid, did unlawfully, intentionally and knowingly have sexual intercourse with [complainant], hereinafter called victim, a female not his wife without the consent of the victim and by acts, words and deeds placed the victim in fear of death and serious bodily injury to be imminently inflicted on [complainant]

This instrument apparently was intended to allege an offense against Penal Code § 21.03(a)(2), Aggravated Rape, as amended through Acts 1981, 67th Leg., p. 203, ch. 96, § 1, and Acts 1981, 67th Leg., p. 471, ch. 202, § 1, both effective Sept. 1, 1981. ²

On February 4, 1983, evidently during the pendency of the original indictment, the appellant was again indicted, this time in cause number F8397658, for the following offense, allegedly committed against the same victim on the same date:

JOHNNIE EARL LINDSEY hereinafter styled Defendant, on or about the 25th day of August in the year of our Lord One Thousand Nine Hundred and 81 in the County and State aforesaid, did unlawfully, intentionally and knowingly have sexual intercourse with [complainant], hereinafter called victim, a female not his wife without the consent of the victim and, intentionally and knowingly, by acts, words and deeds placed the victim in fear of death and serious bodily injury to be imminently inflicted on [complainant]

This instrument also purports to allege a violation of Penal Code § 21.03(a)(2), as amended through September 1, 1983. It differs from the original indictment only insofar as it alleges that appellant placed the victim in fear of death and serious bodily injury "intentionally and knowingly." From the face of these two instruments it is impossible to tell whether they allege the same or separate offenses. We note, however, that the second indictment contains a typewritten notation reading "Reind. AGG RAPE TBI/2ND."

On March 21, 1983, the appellant was called to trial on the second indictment, after which a jury found him guilty as charged and assessed his punishment at confinement for life in the penitentiary and a $10,000.00 fine. Judgment on the verdict was entered March 24, 1983, and the appellant gave notice of appeal. One day later the State moved to dismiss prosecution under the first indictment, reciting that the case had been reindicted as F83-97658-UN, a cause number very much like that of the second indictment, and that appellant had been convicted on March 24, 1983. A handwritten notation on the State's motion suggests that the first indictment was in fact dismissed. From these circumstances it seems probable that both indictments were meant to charge the same offense.

On appeal, the appellant challenged his conviction because the statutory offense for which he was convicted did not exist at the time it was allegedly committed. Specifically, he maintained that the 1981 amendments to Penal Code § 21.03, under which he was prosecuted, did not become effective until September 1, 1981, seven days after the alleged August 25, 1981 date of the offense. Moreover, the Legislature had expressly provided that "[a]n offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." Acts 1981, 67th Leg., p. 203, ch. 96, § 4(b). ³

Such former law, Penal Code § 21.03(a)(2) before the 1981 amendments, provided that:

(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code ... and he:

* * *

(1) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.

See, Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.

Thus, at the time of appellant's allegedly criminal conduct, a person might not be found guilty of aggravated rape for merely placing the victim in fear of death or serious bodily injury, as under the new law. He must also have compelled submission to the rape by a threat of death or serious bodily injury. In effect, the appellant claimed, the law controlling at the time of his allegedly criminal conduct required proof of an element not required under the law as amended after such time.

The Dallas Court of Appeals agreed. Although appellant's conduct might have constituted aggravated rape under either version of the statute, the Court reasoned, application of the 1981 version to appellant "substantially expanded his criminal liability." Consequently, the Court held that "[a]ppellant was charged and convicted under an impermissible ex post facto application of amended section 21.03." The case was reversed and remanded to the trial court. Lindsey v. State, 672 S.W.2d 892 (Tex.App. 5th Dist.1984). We refused the State's petition for discretionary review, and the Court of Appeals issued its mandate on May 1, 1985 remanding the cause "for further proceedings in accordance with the opinion of this Court." ⁴

Approximately three weeks later, on May 23, 1985, the appellant was again indicted for the aggravated rape of the same complainant, allegedly committed on the same date set forth in the previous two indictments. ⁵ This time, in cause number F8597405 UNV, the State charged that:

JOHNNIE EARL LINDSEY hereinafter styled Defendant, on or about the 25th day of AUGUST in the year of our Lord One Thousand Nine Hundred and 81 in the County and State aforesaid, did unlawfully, knowingly and intentionally have sexual intercourse with [complainant], hereinafter called complainant, a female not the wife of the defendant, without the consent of the complainant, and the defendant did knowingly and intentionally compel the complainant to submit to the rape by threat of serious bodily injury to be imminently inflicted on the complainant

This latest indictment purported to charge a violation of Penal Code § 21.03(a)(2), Aggravated Rape, as it existed when the offense in question was allegedly committed and prior to the effective date of the 1981 amendments. Therefore, unlike the previous indictments, it did not charge the appellant with a statutory offense which wasn't in existence at the time of his allegedly criminal conduct. Once again, however, it is not apparent from the indictment's face that it denounces the same criminal conduct as the previous indictments, although it does contain a typewritten notation, like that appearing on the second indictment, which reads "REIND AGG RAPE TBI/2ND."

Upon this indictment the appellant went to trial for the second time, and was again found guilty by a jury. His punishment this time was assessed at life confinement in the penitentiary and a fine of $5,000.00. Judgment was entered on August 28, 1985. The State then filed a written motion to dismiss prosecution in F83-97658-UNV, a cause number similar to that of the second indictment mentioned hereinabove, alleging that the case had been reindicted as F85-97405-JNV, a cause number similar to that of the case in which appellant was convicted on August 28, 1985. These circumstances render it probable that the indictment upon which appellant was last convicted charged the same criminal misconduct as the previous indictment, and because both parties aver in their briefs that such is indeed the case, we accept it for purposes of analysis.

During trial, immediately following conclusion of the State's case-in-chief, the appellant moved for an instructed verdict of not guilty, apparently upon the ground either that the prosecution was barred by limitations or that the State had not pled and proved otherwise. ⁶ The motion was promptly overruled, and the State did not thereafter offer evidence to show that the applicable period of limitations had been tolled. Evidently, both prosecuting attorney and trial judge were of the opinion that the statute of limitations applicable to the offense in question was five years.

On direct review, the Court of Appeals agreed. In an unpublished opinion, the Court disposed of appellant's contention in a single paragraph:

In his third ground of error, Lindsey contends that the action was barred by the statute of limitations. At the time of the offense, August 25, 1981, the statute of limitations for rape was three years. Lindsey contends that a subsequent amendment of the statute, effective September 1, 1983, extending the limitations period to five years, cannot be applied to an offense previously committed. TEX.CODE CRIM.PROC.ANN. art. 12.01 (Vernon 1974). Therefore, according to Lindsey's argument, the re-indictment on May 23, 1985, came too late. However, in Archer v. State, 577 S.W.2d 244 (Tex.Cr.App.1979), the Texas Court of Criminal Appeals held that a statute extending a period of limitation applies to all offenses not barred at the time of passage of the act, so that a prosecution may be commenced at any time within the newly established period, although the old period of limitations may have expired. Id. Lindsey's third ground of error is overruled.

Lindsey v. State, Tex.App. 5th Dist., No....