State v. Yount

• Decision Date: 24 February 1993
• Docket Number: No. 093-92,093-92
• Citation: 853 S.W.2d 6
• Parties: The STATE of Texas, Appellant, v. Ronald Wayne YOUNT, Appellee.
• Court: Texas Court of Criminal Appeals

Page 6

853 S.W.2d 6

The STATE of Texas, Appellant, v. Ronald Wayne YOUNT, Appellee.

No. 093-92.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 24, 1993.

Rehearing Denied May 19, 1993.

Peter C. Speers, III, Dist. Atty., Kathleen A. Hamilton, Asst. Dist. Atty., Conroe, for appellant.

David Ball, Jr., Montgomery, for appellee.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING AFTER PETITION

FOR DISCRETIONARY REVIEW REFUSED

CAMPBELL, Judge.

Appellee, Ronald Wayne Yount, was indicted for three separate offenses of involuntary manslaughter. See Tex.Penal Code § 19.05. Upon appellee's request, the trial judge charged the jury upon not only involuntary manslaughter (a felony) but also the lesser included offense of driving while intoxicated (a misdemeanor). See Tex.Rev.Civ.Stat. art. 6701l-1(b) to (c). A jury found appellee guilty of the misdemeanor offense, and the trial court assessed punishment at two years imprisonment, suspension of appellee's driver's license for two years upon his release, plus a fine of two thousand dollars. The trial court, however, then granted appellee's motion to set aside the judgment, because the statute of limitations had run on the misdemeanor offense. See Tex.Code Crim.Proc. art. 12.02. The Ninth Court of Appeals affirmed the trial court's decision. State v. Yount, 820 S.W.2d 252 (Tex.App.--Beaumont 1991). We granted the State's motion for rehearing after petition for discretionary review was refused, to decide whether the court of appeals erred in holding that the trial court correctly granted appellee's motion to set aside the judgment. We will reverse the judgments of the trial court and the court of appeals and reinstate the trial court's original judgment and sentence.

The court of appeals held that the trial court did not err in granting appellee's motion to set aside the judgment, holding that a defendant "may not be convicted of a lesser included offense if the period of limitations for the lesser offense has expired notwithstanding the fact that [the defendant] could be convicted of the greater ... offense ... due to a longer applicable period of limitation." State v. Yount, 820 S.W.2d at 254, quoting Gallardo v. State, 768 S.W.2d 875, 879 (Tex.App.--San Antonio 1989, pet. ref'd). The court of appeals reviewed the trial court's ruling under an abuse of discretion standard and reasoned that "it would have been an abuse of discretion for the trial court to simply disregard the clear and unambiguous language of Gallardo." State v. Yount, 820 S.W.2d at 254. The court of appeals concluded its analysis by finding that the trial court had erred in submitting the charge on the time-barred offense, but had "corrected its own error by setting aside the verdict and the judgment." Id.

In its brief to this Court, the State argues initially that the court of appeals erred in affirming the judgment of the trial court based upon the decision in Gallardo, which is not dispositive due to the differing posture of its underlying facts. The State argues that Gallardo, unlike the instant case, involved a situation wherein the indictment itself was flawed because the statute of limitations had already run on the charged offense. Additionally, the State argues that this case differs from Gallardo because "there were no indications [in Gallardo ] that the defendant himself had requested that the instructions on the lesser included misdemeanor offenses be included." Finally, the State argues that since appellee invited the error by specifically requesting the charge on the lesser included offense, he should be estopped from now complaining of that error.

In response, appellee directs our attention to the fact that the State failed to object to the submission of the misdemeanor charge. Appellee argues that the State was negligent in failing to charge him with the misdemeanor offense before the expiration of the applicable statute of limitations. Appellee also argues that if the State's argument is accepted, in future cases where the statute of limitations has already expired on lesser included offenses, the State could purposefully charge defendants with the greater offense as a means of circumventing the statute of limitations applicable to the time-barred offense. Additionally, appellee argues that not only Gallardo, but also Alston v. State, 738 S.W.2d 762 (Tex.App.--Beaumont 1987, no pet.), supports the court of appeals' disposition of this case.

The court of appeals' reliance upon Gallardo and Alston was misplaced, as the facts of those two cases fail to render them dispositive of the instant case. In Gallardo, the statute of limitations was determined to have already run on the offense for which the defendant was indicted when the indictment was presented. 768 S.W.2d at 880. Likewise in Alston, at the time the indictment was presented, the statute of limitations pertaining to the charged offense had already expired. 738 S.W.2d at 762. In this case, the statute of limitations had not expired on the felony offense for which appellee was indicted. Thus, this case presents a situation wholly different than that addressed in either Gallardo or Alston.

Having disposed of the applicability of Gallardo and Alston, we must make some general observations about the nature of statutes of limitations. This Court's past pronouncements regarding limitations statutes have lacked consistency. Since the holding in Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977), however, we have expressly treated limitations as a jurisdictional issue. If the State alleged in an indictment that the offense was committed at a time beyond that permitted by the statute of limitations, the trial court did not have jurisdiction over the defendant. Id. at 203. The error committed was fundamental and could be raised for the first time on appeal. Id.

In 1990, however, we interpreted the 1985 amendments to Article V, § 12 of the Texas Constitution and Article 1.14(b) of the Code of Criminal Procedure and determined that if an error in a charging instrument was not raised before trial, any such error was waived. Studer v. State, 799 S.W.2d 263, 273 (Tex.Cr.App.1990). Moreover, jurisdiction was conferred upon the trial court by the presentment of the charging instrument, even if the charging instrument was flawed. Id. at 268. If the defendant failed to direct the trial court's attention to the defects in the charging instrument before trial, the defendant would be precluded from raising those defects "on appeal or in any postconviction proceeding." Id. at 271 n. 11. Therefore, 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. ¹

In this case, appellee did inform the trial court of the limitations bar, by way of a motion to set aside the judgment. Before trial, appellee could not attack the indictment on limitations grounds because the indicted offense (involuntary manslaughter) was not time-barred. In this regard, appellee could not have known what the evidence would show. Appellee, however, requested that the lesser offense instruction be included. While he may not have known that the evidence would warrant only a finding of guilt of the lesser offense, his actions in requesting the instruction are indicative of his desire that if the jury returned a verdict of guilt, it would be guilt of the lesser offense only. While we have not addressed this exact issue before, an almost identical situation was presented to the Rhode Island Supreme Court in State v. Lambrechts, 585 A.2d 645 (R.I.1991).

In that case, the defendant had been charged with six counts of first-degree sexual assault but was convicted of six counts of second-degree sexual assault. At trial, appellant had requested that the jury be instructed on the lesser included offense of second-degree sexual assault, each count of which was barred by limitations. The Rhode Island Supreme Court held "that the statute of limitations is a waivable affirmative defense" and that appellant had waived that affirmative defense by requesting that the jury be instructed on the lesser offense. Id. at 647-648.

The Lambrechts court relied heavily upon the case of United States v. DeTar, 832 F.2d 1110 (9th Cir.1987), in which the defendant had contended that the trial judge committed error in not submitting a lesser included offense instruction concerning a time-barred offense. DeTar, 832 F.2d at 1113. The defendant also maintained, however, that his request for such an instruction constituted no waiver of the limitations defense. Id. at 1115. The DeTar court rejected the argument based upon the rationale that instructing the jury on an offense of which it could not validly convict would serve no purpose other than to mislead the jurors. Id. The circuit court noted that there would have been no problem in allowing the defendant the benefit of the lesser offense instruction if he had been willing to waive his limitations defense. Id. The court concluded that treating the defendant's request and receipt of the lesser included offense instruction as a valid waiver best avoided "the alternative evils of misleading the jury or denying a defendant an instruction that he desires and would be entitled to, but for the bar of limitations." Id.

Similar reasoning was used in the case of Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). In Spaziano, the defendant was charged with and convicted of capital murder. At the close of the evidence, the trial judge offered to instruct the jury on lesser included offenses which were time-barred, if the defendant would waive his limitations defenses. The defendant refused and the jury was instructed only on the capital offense. The Supreme Court rejected the...