State v. Turner

• Decision Date: 10 May 1995
• Docket Number: No. 174-94,174-94
• Parties: The STATE of Texas, Appellant, v. Charlie TURNER, Jr., Appellee.
• Court: Texas Court of Criminal Appeals

Page 303

898 S.W.2d 303

The STATE of Texas, Appellant, v. Charlie TURNER, Jr., Appellee.

No. 174-94.

Court of Criminal Appeals of Texas En Banc.

May 10, 1995.

Vernon L. Hankins, Porter, for appellee.

John B. Holmes, Jr., Dist. Atty. and Mary Lou Keel, Denise Nassar and Melissa Scharz, Asst. Dist. Attys., Robert Huttash, Houston, for appellant.

Before the Court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellee was indicted on April 14, 1992, in Cause No. 629838, for a theft allegedly committed on or about August 29, 1987. On January 11, 1993, the State filed an indictment in Cause No. 653846 also alleging appellee committed a theft on or about August 29, 1987, but alleging a different owner of the appropriated property. The first indictment was dismissed on January 13, 1993. On the day of trial appellee filed a Motion to Dismiss the second indictment. The trial court granted appellee's motion and the Court of Appeals affirmed. Turner v. State, 868 S.W.2d 351 (Tex.App.--Houston [14th Dist.] 1993) (op. on original submission). The State filed a motion for rehearing which was overruled by the Court of Appeals. Id. at 355 (Tex.App.--Houston [14th Dist.] 1994) (op. on reh'g). We granted the State's petition for discretionary review to determine whether the Court of Appeals erred in its interpretation and application of article 1.14 and its holding that the statute of limitations is a defense. ¹

On the day of trial appellee filed a Motion to Dismiss in which he alleged that "[t]he Indictment shows on its face that the alleged offense was committed on August 29, 1987 and the Indictment was returned on the 11th day of Jan. 1993 which is more than 5 years from the date of [the] offense and is therefore barred by Article 12.01(3)(A) from prosecution." The State argued that the motion should not be entertained because it was untimely filed under article 1.14(b) which requires that objections to defects in an indictment be raised prior to the date of trial. Appellee responded that jurisdictional defects can be raised at any time. Stating that the case appeared to be barred by the applicable statute of limitations, the trial court granted appellee's motion, dismissing the case with prejudice. ²

The Court of Appeals reasoned that since the dates alleged in the indictment (the date of the offense and the date the indictment was returned) were correct, article 1.14 did not apply:

A defect in a limitations problem which is "substantive" occurs when the indictment reflects an incorrect date in either the return of the indictment or the commission of the offense. For example, an indictment returned February 1, 1993, which reflects that the charged offense of theft occurred January 1, 19 83, when the offense actually occurred on January 1, 1993, could be amended by the prosecutor to reflect the proper date. Another amendable defect occurs when the indictment reflects that it was returned February 1, 1983, for a crime committed on January 1, 1993, when the indictment was actually returned on February 1, 1993. Both of these examples are clearly susceptible to amendment or correction, and therefore Article 1.14 applies.

However, when the prosecution does not dispute that the indictment contains the correct dates for both the date of the return of the indictment and the date of the offense, there is nothing for the State to amend or correct. In the present case, the State has not pled, argued or presented evidence of tolling; therefore the indictment contains no correctable error or defect.

Turner, 868 S.W.2d at 353-54 (op. on original submission) (emphasis in original). In addition, the Court of Appeals held that the statute of limitations is a defense that can be brought to the court's attention the day of trial without waiving the right to claim the defense. Id. at 354. They explained that since the State must prove the offense occurred within the limitation period, limitations must be properly pled or the indictment cannot be said to charge an offense. Id. at 354-55.

On rehearing, the Court of Appeals rejected the State's contention that State v. Yount, 853 S.W.2d 6 (Tex.Crim.App.1993) required an objection based upon limitations to be brought to the trial court's attention before the day of trial. Turner, 868 S.W.2d at 355 (op. on reh'g). Rather, the Court of Appeals construed Yount as allowing an objection on the day of trial, but before the trial commenced.

The State claims the Court of Appeals erred in failing to hold that under article 1.14(b) appellee waived any defect in the indictment by not bringing it to the attention of the trial court before the day of trial. The State also complains the Court of Appeals erred in failing to account for the language and meaning of Yount. Finally, the State claims the Court of Appeals erred in categorizing limitations as a defense. Appellee argues that an indictment which shows a limitations problem on its face is insufficient to vest the court with jurisdiction.

I. Article 1.14(b)

Article 1.14(b) of the Code of Criminal Procedure provides in part:

If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.

Article 27.08 of the Code of Criminal Procedure sets forth what are considered defects of substance in an indictment or information. ³ Reading articles 1.14 and 27.08 together, we concluded in Studer v. State, 799 S.W.2d 263, 268 (Tex.Crim.App.1990), that the defects of substance listed in article 27.08 must be raised pretrial or "the accused has forfeited his right to raise the objection on appeal or by collateral attack." Among article 27.08's enumerated defects of substance is the following:

That it appears from the face thereof that a prosecution for the offense is barred by a lapse of time, or that the offense was committed after the finding of the indictment[.]

Tex.Code Crim.Proc.Ann. art. 27.08(2).

The Court of Appeals distinguished between different types of defects under article 1.14, concluding that some defects can be corrected while others cannot and that only defects that can be corrected, apparently by a simple word or number change, are subject to the confines of article 1.14 and 27.08. We disagree. There is no language in either of those articles distinguishing between correctable and non-correctable defects. Nothing on the face of article 1.14 indicates that if a defect cannot be corrected by a simple amendment it is not subject to the timely objection requirement thereof.

The indictment at issue was returned on January 11, 1993, and alleged a theft that occurred on or about August 29, 1987. There is more than five years between the date of the alleged offense and the date of the indictment. Accordingly, "it appears from the face [of the indictment] that a prosecution for the offense is barred by a lapse of time." Tex.Code Crim.Proc.Ann. art. 27.08(2). This is a defect of substance. Id. Under article 1.14(b), if a defendant fails to object to such a defect in an indictment "before the date on which the trial on the merits commences ... he waives and forfeits the right to object to the defect...." We agree with the State that article 1.14(b) "means what it says." A defendant must bring defects of form or substance in an indictment to the attention of the trial court "before the date on which the trial commences [or] he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal." By waiting until the date of trial, ⁴ appellee "waive[d] and forfeit[ed] the right to object to the defect[.]" ⁵

II. Limitations

In its opinion on original submission the Court of Appeals stated that

... a defense [need not] be brought to the court's attention pursuant to Article 1.14. We believe that the statute of limitations in this case is a defense, not a defect, and can be brought to the court's attention the day of trial without waiving the right to claim the defense.

Turner, 868 S.W.2d at 354 (op. on original submission). The State contends limitations is not a defense, but a pleading requirement. Appellee argues that limitations is a defense and as a defense can be raised at any time irrespective of article 1.14(b).

While Yount did not address the issue of whether limitations is a "defense," it provides some clue as to the nature of limitations. ⁶ We there paused to "make some general observations about the nature of statutes of limitations." Yount, 853 S.W.2d at 8. We recognized that in the past limitations was considered a jurisdictional issue. If an indictment was not presented within the limitation period or did not properly allege tolling of the limitation period, the trial court did not have jurisdiction; therefore, that defect could be raised at any time. But with the passage of the amendments to Article V, § 12 of the Texas Constitution and article 1.14(b) of the Code of Criminal Procedure, it is clear that jurisdiction is conferred by the presentment of the charging instrument, even if it appears from the face of the instrument that there is a limitations problem. We concluded that "an indictment which charges the commission of an offense barred by limitations still confers jurisdiction upon the trial court, such that the defendant must bring the defect to the attention of the trial court in order to preserve any error." Id. Accordingly, the Legislature has decided that a limitations allegation in an indictment no longer has jurisdictional implications.

The Code of Criminal Procedure refers to limitations in several provisions. Article 21.02, Requisites of an indictment, requires that "[t]he time mentioned [in the indictment] must be some date anterior to the...