asserting that fundamental error was shown because “the constitutional prohibition against ex post facto legislation is not an individual right at all . . . ” and “the people may not waive this prohibition, either individually or collectively, any more than they may consent to be imprisoned for conduct which does not constitute a crime”
How later courts described this case
- asserting that fundamental error was shown because “the constitutional prohibition against ex post facto legislation is not an individual right at all . . . ” and “the people may not waive this prohibition, either individually or collectively, any more than they may consent to be imprisoned for conduct which does not constitute a crime”
- holding that an ex post facto claim may be presented for the first time on appeal because a categorical prohibition may not be waived
- finding constitutional ex post facto prohibition is fundamental systemic requirement that cannot be waived
- holding that no preservation is required to raise ex post facto complaint in criminal cases
Written by the judges who cited it.
The opinion
KELLER, Judge,
dissenting.
This case involves four indictments that allege that Appellant engaged in various acts of sexual misconduct with a child under fourteen years of age. The alleged dates for the offenses are all prior to the effective date of Texas Penal Code § 22.021. At the time the offenses were committed, the applicable statute was the now repealed § 21.05(a)(5) (West Supp.1981), which penalized “sexual abuse of a child.” The definition of “sexual abuse of a child” under then § 21.10 (West 1974) contained the phrase “with the intent to arouse or gratify the sexual desire of any person.” The indictments do not contain this phrase but otherwise satisfy the elements of the offense in § 21.05.
All defects of form or substance in an indictment are waived unless the defendant lodges a pretrial objection. Texas Code of Criminal Procedure, Article 1.14(b). The omission of an element of the offense is a defect of substance which is waived by the failure to object in a timely manner. Studer v. State, 799 S.W.2d 263, 272-3 (Tex.Crim.App.1990).
The majority is absolutely correct in its assertion that convictions under § 22.021 would be barred by ex post facto considerations, but § 22.021 has nothing to do with this ease. § 21.05 is the statute that appellant violated and under which he should have been charged. The indictments do in fact charge offenses under § 21.05. The omission of an element of § 21.05 is a waivable error, and appellant did waive error by failing to object. 1
For these reasons, I respectfully dissent.
. In Thomason v. State, 892 S.W.2d 8 , 11 n. 5 (Tex.Crim.App.1994) we stated that when an indictment charges a facially complete offense we do not presume a defect exists, and Studer is simply not applicable. In other words, Studer . applies only to cases involving indictments that are facially defective. On its face, the indictment in the present case alleges a date of commission inconsistent with a prosecution under § 22.021. This intrinsic inconsistency is a defect which authorizes application of Studer .