Van Hoang v. State

McCORMICK, Presiding Judge,

concurring and dissenting.

I join the Court’s opinion to the extent it holds limitations is a defense and is an issue for the jury to decide once a defendant timely raises the issue at guilt-innocence. However, I disagree with the Court’s holding the issue was raised in this case because appellant failed to controvert the State’s evidence that the running of the limitations period was tolled.

I

At least the majority retreats from the “bad” law this court recently made in Lemell v. State, 915 S.W.2d 486 (Tex.Cr.App.1995). Lemell suggests, if it does not expressly hold, that limitations is an “element” of the State’s prima facie case for purposes of sufficiency review under Jackson v. Virginia, 448 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), which a defendant may raise at any stage of the proceedings. See Lemell, 915 S.W.2d at 490 (McCormick, P.J., dissenting). However, the Court in this case treats limitations as a defense which is how this Court has treated it over the years. See V.T.C.A., Penal Code, Section 2.03; Ex parte Morin, 172 Tex.Crim. 322 , 356 S.W.2d 689 (1962); Gray v. State, 68 S.W. 799 (Tex.Cr.App.1902). As the Court observes, this means,

“Once the [statute of limitations] issue is thus raised, however, the State must prove beyond a reasonable doubt that the prosecution is not limitations-barred.”

Lemell and the majority opinion in this case cannot stand side by side because Le- *602 mell treats limitations as an element of the State’s prima facie case which can be raised at any time and the majority opinion treats it as a defense which has to be raised in a timely manner. The Court’s opinion cannot be said to be following Lemell since the majority’s ultimate holding is that “limitations was raised and the State was put to its burden to prove the indictment was not untimely.”

If the majority was going to follow Lemell , they would not need to decide whether “limitations was raised.” Under Lemell , they would need to decide only whether the trial court provided a jury instruction on limitations. See Lemell, 915 S.W.2d at 489 (State has burden to prove beyond a reasonable doubt that offense was committed within the statute of limitations and defendant’s “Motion for Instructed Verdict” at the punishment phase addressed the sufficiency of the evidence at trial that the offense occurred within the statute of limitations). Under Le-mell, the Court should be treating this case as if the trial court failed to instruct the jury on an element of the State’s prima facie case. Since the majority declines to do this, I assume they intend to overrule Lemell sub silentio, and I join the majority opinion to this extent. This, in effect, makes five votes in this case to overrule Lemell .

And, Lemell was wrongly decided to the extent it holds limitations is an “element” of the State’s prima facie case for purposes of sufficiency review under Jackson v. Virginia, which a defendant can raise at any stage of the proceedings. This holding requires the State to shoulder its burden of persuasion before a defendant even carries the initial burden of production on the issue. See Lemell, 915 S.W.2d at 489 . That is not to say limitations is never an “element” of the offense. But, it does not become an “element” of the offense and implicate “sufficiency of the evidence” until a defendant satisfies his initial burden of timely raising the issue.

Moreover, as Lemell also demonstrates, Lemell encourages factually and legally guilty criminals to “sandbag” their limitations claims until the punishment phase of trial so they can later obtain acquittals on appeal since the State ordinarily will have had no opportunity to rebut these claims before the jury at guilt-innocence. See Lemell, 915 S.W.2d at 490 (McCormick, P.J., dissenting) (record reflected defendant waited until the punishment hearing to raise his limitations defense in what he called a “Motion for Instructed Verdict”). In short, the State was blindsided in Lemell and it would have continued to be blind-sided in future cases falling within Lemell’s reach. But see Bauder v. State, 921 S.W.2d 696, 705 (Tex.Cr.App.1996) (McCormick, P.J., dissenting) (justice, though due the accused, is due the accuser also). Although the majority does so sub silentio, I wpuld expressly overrule Le-mell and expressly reaffirm this Court’s earlier holdings on how limitations should be raised and litigated in the trial court.

II

I disagree with the majority’s holding that “limitations was raised and the State was put to its burden to prove [before the jury] the indictment was not untimely.” The majority relies on the face of the indictment and the evidence actually presented to the jury to conclude “limitations was raised.” According to the majority, the issue is “whether uncontested proof of facts that would toll the running of the limitations period is sufficient to obviate the need for a jury instruction if that evidence is presented only to the trial court, not the jury.”'

I would hold a defendant fails to raise the limitations issue when the evidence is undisputed that the running of the limitations period was tolled regardless of whether the evidence is presented to the trial court in or out of the presence of the jury. Under either scenario, a defendant is not entitled to a jury instruction on limitations. Even the majority would agree that had everything in this case occurred in front of the jury the trial court still would not have erred to refuse appellant’s requested jury instruction on limitations. It should make no legal difference whether the uncontroverted evidence was presented to the trial court in or out of the presence of the jury because the jury was not going to receive an instruction on limitations under either scenario.

*603 Moreover, the evidence presented at trial did not raise the limitations issue because that evidence is irrelevant to whether the limitations period was tolled. It also is irrelevant that the indictment on its face showed a limitations-barred offense because the issue is whether the limitations period was tolled. That the face of the indictment shows a limitations-barred offense is a red herring and has nothing to do with this case. The issue is whether there was a disputed fact question for the jury to resolve on whether the limitations period was tolled.

And, I really do not see what the allegations in the indictment have to do with this ease since an indictment is not evidence of anything. This is like saying the allegations in an indictment constitute evidence of the State’s prima facie case which everyone would agree is absurd. Moreover, the jury charge in this case instructed the jury that the indictment was no evidence of guilt yet the majority relies on it as evidence that the limitations issue was raised.

The majority further states this Court would never approve of a trial court failing to submit an “element” of the offense in the jury charge just because the State’s evidence establishing that “element” was not disputed. Of course, I agree with this. The Fourteenth Amendment’s due process clause and other constitutional protections do not permit a trial court to prevent the jury from deciding whether the State proved beyond a reasonable doubt an essential element of the offense as defined by state law even if the evidence establishing that element is undisputed. See Jackson v. Virginia, 443 U.S. at 318-20 , 324 fn. 16, 99 S.Ct. at 2789 , 2792 fn. 16.

However, that is not what happened here. The Fourteenth Amendment requires appellate courts to review the sufficiency of the evidence to support the “elements” of the offense as defined by state law. See id. Under state law, appellant failed to satisfy his initial burden of producing evidence that raised a disputed fact question for the jury to resolve on whether the limitations period had been tolled. All of the uncontroverted evidence was to the contrary. Therefore, limitations never became an “element” of the offense the State had to prove. I would hold the Court of Appeals correctly concluded the trial court did not err to refuse to instruct the jury on the limitations issue.

As a policy matter, the majority opinion also ignores the basic purpose of the criminal law. See Bander, 921 S.W.2d at 705 (McCormick, P.J., dissenting) (basic purpose of the criminal law is to “provide for the security of the individual and his property”). There is no question about appellant’s factual guilt— he is guilty. The record reflects appellant received the full panoply of the awesome protections afforded him by our Constitution — i.e., due process of law. The majority opinion promotes no important social policies such as protecting us from police overreaching or preventing us from becoming victims of a totalitarian police state. The majority opinion does not even promote the underlying purpose of a limitations defense which is to prevent initial prosecutions of old and stale claims against defendants unable to defend themselves due to the passage of time. None of these things are involved in this ease.

Rather, the “important” policy the Court’s opinion advances here is the jury should have had an opportunity to acquit appellant on an issue about which no one had any dispute. The majority opinion completely ignores what the criminal law is designed to accomplish, and its holding exalts technicalities over substance. It reflects a judicial philosophy that the criminal law exists for the sole benefit and protection of criminals even to the point of instructing juries to acquit them on issues over which no one has any dispute. See Bander, 921 S.W.2d at 705 (McCormick, P.J., dissenting).

Relying on Cooper v. State, Judge Maloney’s concurring opinion concludes the State had to present evidence to the trial court in front of the jury that the limitations period was tolled because the face of the indictment showed a limitations-barred offense. See Cooper v. State, 527 S.W.2d 563, 565-66 (Tex.Cr.App.1975). It makes no difference that had the State done this, appellant would not have been entitled to a jury instruction on limitations. See Hoang, 939 S.W.2d at 601 fn. 7 (Maloney, J., concurring). Moreover, *604 Cooper is distinguishable from this case because in Cooper the indictment alleged tolling of the limitations period requiring the State to prove that allegation. Cooper v. State, 527 S.W.2d 563, 565-66 (Tex.Cr.App.1975) (when the indictment alleges tolling of the statute of limitations, the State has to prove that allegation). Cooper merely applies the general rule that the State must prove what it alleges. The indictment in this case did not allege tolling of the statute of limitations and the State proved everything it alleged. Cooper does not support the inane result the majority reaches in this case.

In cases like this where the face of the indictment shows a limitations-barred offense and the indictment contains no tolling allegations, to make limitations an issue in the case possibly implicating the sufficiency of the evidence to support a conviction on appeal, 1 a defendant should stand up at the guilt-innocence phase of trial and claim he is entitled to have the prosecution dismissed because the face of the indictment shows a limitations-barred offense. See Article 28.06, V.A.C.C.P.; but see Lemell, 915 S.W.2d at 488 (defendant waited until the punishment phase to raise the limitations issue). 2 If the State presents to the trial court no evidence of tolling, then the prosecution should be dismissed. See Article 28.06. If, as in this case, the State presents to the trial court uncontroverted evidence that the limitations period was tolled, then the issue should not go to the jury because there is no issue for the jury to decide. It should be completely irrelevant whether the jury is present or not when this happens because it is not going to decide the issue anyway. 3

If the defendant controverts the State’s evidence on the tolling of the limitations period, then and only then should the issue go to the jury. It is only in this latter scenario that limitations implicate the sufficiency of the evidence under prior interpretations of our state law. See Lemell, 915 S.W.2d at 489 . But where a defendant, like the one in Lemell , lies behind the log and waits until the punishment phase of trial to raise the limitations issue, he should be held to have waived the issue. See Tex.R.App.Proc. 52(a); but see Lemell, 915 S.W.2d at 489-90 .

This framework strikes a proper balance between all competing interests. The State and the defense are permitted to fairly litigate the limitations issue and have the issue go to the jury if there is a factual dispute without one party attempting to blindside the other party. Unfortunately this case demonstrates that a majority of this Court apparently believes our role is to adopt rules that encourage guilty criminals to lie behind the log at trial so they can obtain appellate acquittals by seeing how many technicalities they can make dance on the head of a pin. See Lemell, 915 S.W.2d at 489 .

Judge Maloney’s concurring opinion also concludes limitations is “simply sui gener-is ” — i.e., limitations is neither an element nor a defense. But see Ex parte Ward, 470 S.W.2d 684, 686 (Tex.Cr.App.1971) (statutes of limitations are matters of defense and must be asserted on trial by the defendant in criminal cases). However, after Lemell , limitations cannot be characterized as anything *605 but an element of the State’s prima facie case if the indictment on its face shows a limitations-barred offense and the indictment contains no tolling allegations. See Lemell, 915 S.W.2d at 490 (McCormick, P.J., dissenting). What else can it be but an element of the State’s prima facie case if this Court, as it did in Lemell , holds a defendant raises the “sufficiency of the evidence at trial that the offense occurred within the statute of limitations” after that defendant lies behind the log and waits until the punishment phase of trial to raise the limitations issue? 4 See Lemell, 915 S.W.2d at 488 .

Finally, Judge Maloney’s concurring opinion characterizes my position as being that this case and Lemell cannot stand side by side because Lemell treats limitations “like an element.” However, as demonstrated above, my contention is that Lemell treats limitations as an element of the State’s prima facie case. This is why the majority opinion and Lemell cannot stand side by side.

Ill

Finally, I must comment on the majority’s gratuitous comments about how the Court of Appeals should analyze on remand the trial court’s failure to submit a jury instruction on the limitations issue. The Court’s opinion states:

“As the record stands, had the trial court instructed the jury on the statute of limitations, the jury would have had no choice but to acquit appellant, since the only evidence before the jury showed a limitations-barred offense. Surely the certainty of an acquittal suffices to establish ‘some’ harm.”

On remand, I urge the Court of Appeals to consider that had the uncontroverted evidence on the tolling of the limitations period been presented to the trial court in front of the jury appellant still would not have been entitled to a jury instruction on limitations, and any instruction he might have received would have been gratuitous. Moreover, had the trial court provided appellant’s requested jury instruction, then the jury would have had undisputed evidence before it that the limitations period was tolled.

This uncontroverted evidence is in the record. The “proceeding” during which this evidence was presented to the trial court outside the presence of the jury for all intents and purposes is a bill of exceptions of the evidence that would have been presented to the jury had the trial court instructed the jury on the limitations issue. See Tex. R.App.Proe. 52(b). There is evidence in the record from which the Court of Appeals can find appellant suffered absolutely no harm from the trial court’s failure to instruct the jury on limitations. It makes no difference that this evidence was presented outside the presence of the jury. See id.

Even if the Court of Appeals decides to analyze whether appellant suffered “some” harm based on “as the record [now] stands,” the Court of Appeals may consider whether granting relief to this factually guilty appellant based on the trial court’s failure to provide a jury instruction on an undisputed fact is the type of “harm” for which fairly tried criminals should obtain relief on appeal. See Herrera v. Collins, 506 U.S. 390, 397-401 , 113 S.Ct. 853, 859-60 , 122 L.Ed.2d 203 (1993). I would hold it is not.

IV

Also, since this case presents only the issue of whether the Court of Appeals erred to decide the trial court correctly refused appellant’s requested jury instruction on the limitations issue, the proper remedy is to remand this case to the Court of Appeals to determine whether appellant suffered “some” harm from the failure to give the instruction. However, if I were appellant, I would have argued I am entitled to an acquittal pursuant to Lemell . However, since appellant presents only jury charge error, the most relief *606 he can expect to receive is a reversal of his conviction and a remand for a new trial. In any event, the majority opinion overrules Lemell sub silentio.

Because the majority completely loses sight of the purposes and policies of the criminal law in this case, I must respectfully dissent except with respect to overruling Le-mell.

. See Lemell, 915 S.W.2d at 490 (McCormick, P.J., dissenting).

. We should reexamine our earlier holdings that permit limitations to be raised at trial. The main puipose of a trial and our duty to review the record for evidentiary sufficiency is to determine whether a defendant is factually guilty. A statute of limitations claim has nothing to do with a defendant’s factual guilt. See Vasquez v. State, 557 S.W.2d 779, 781 (Tex.Cr.App.1977) (statutes of limitations are acts of grace and a surrendering by the sovereign of its right to prosecute after a certain passage of time). Limitations is an issue that should be resolved pretrial, and a defendant who waits until trial to raise the issue should be deemed to have waived it. See Article 28.06. Limitations really has nothing to do with whether the State proved everything required of it to establish a defendant's factual guilt. Therefore, it should not have anything to do with reviewing the record for evidentiary sufficiency.

.Incredibly the majority holds appellant was entitled to a jury instruction which, in effect, would have instructed the jury to acquit appellant, because the jury was not sitting in the jury box when the State presented to the trial court its uncontroverted evidence on the tolling of the limitations period. Had the jury been sitting in the jury box when this happened, then appellant would not have been entitled to the jury instruction and the jury would never have been called upon to consider appellant’s limitations claim!

. If, under Lemell , a defendant can properly raise the limitations issue for the first time at the punishment phase of trial, he should also be able to raise it for the first time on appeal. I wonder how Lemell would have been decided had the defendant raised the limitations issue for the first time on appeal? Moreover, on remand from this Court, the Court of Appeals apparently read Le-mell as holding that limitations is an element of the State's prima facie case since on remand that Court reversed the defendant's conviction and ordered an acquittal. See Lemell v. State, No. 11-88-150-CR (Tex.App.-Eastland, May 23, 1996, pet.pending) (nonpublished).