"[I]t is not ordinarily this Court's bailiwick to pass upon questions of harm in the first instance[.]"
How later courts described this case
- "[I]t is not ordinarily this Court's bailiwick to pass upon questions of harm in the first instance[.]"
Written by the judges who cited it.
Later courts went against this
Overruled by Proctor v. State, 1998 Tex. Crim. App. LEXIS 33 (1998)
Proctor overruled Van Hoang because in that case there was no evidence raising the limitations defense.
The opinion
MANSFIELD, Judge,
dissenting.
The record indicates appellant was charged with the offense of aggravated robbery, alleged to have been committed on or about January 29, 1986. Appellant was taken into custody within a few hours after commission of the offense, but he then escaped. He was subsequently recaptured in April of 1986. The statute of limitations for aggravated robbery is five years. Tex.Code Crim Proe., Art. 12.01(4)(A).
An indictment was filed August 7, 1992, over six years after the date of the offense. This indictment states, on its face, that this case is a reindictment of another case. At trial, the court, outside the presence of the jury, announced into the record that the previous indictment was dated August 21, 1990, a date that was four months within the five-year limitations period for this offense. In the record on appeal, the August 21, 1990 indictment is included as part of a subsequent transcript, though the date of commission of the alleged offense in this indictment is stated as January 1, 1986 whereas the August 7,1992 indictment alleges the date to be January 29,1986.
The trial court denied appellant’s request for a charge on the statute of limitations, finding that the issue had not been raised before the jury. Appellant was convicted of the offense and was assessed a sentence of forty years confinement in the Texas Department of Criminal Justice — Institutional Division. The court of appeals affirmed appellant’s conviction. Hoang v. State, No. 05-92-02129-CR, 1994 WL 722006 (Tex.App.-Dallas 1994) (unpublished). The court of appeals held that the statute of limitations was tolled during pendency of the August 21, 1990 indictment (it also noted the August 7, 1992 indictment stated on its face that it was a reindictment of a previous case); therefore a jury instruction on limitations was not required. The court of appeals, in support of its ruling, cited Wimberly v. State, 22 Tex.App. 506 , 3 S.W. 717 (1886) and Ex parte Morin, 172 Tex.Crim. 322 , 356 S.W.2d 689 (1962), cert. denied, 372 U.S. 924 , 83 S.Ct. 742 , 9 L.Ed.2d 729 (1963). This Court granted appellant’s petition for discretionary review to consider the following ground for review: The court of appeals erred in holding that no limitations instruction to the jury was required. Because I believe the court of appeals opinion correctly states the law, I believe appellant’s petition for discretionary review should be improvidently granted. Therefore, I must respectfully dissent.
In State v. Turner, 898 S.W.2d 303, 307 (Tex.Crim.App.1995), we held the burden of proving the offense alleged in the indictment occurred within the applicable limitations period (or that the applicable limitations period has been tolled) remains on the State even if the accused fails to object to an indictment that does not plead limitations properly prior to the day of trial. In the present case the State presented evidence to the court — outside the presence of the jury — that the applicable limitations period had been tolled by the pendency of the August 21, 1990 indictment, the validity of which was not contested by either party. Therefore, the State met its burden of proving the offense occurred within the applicable limitations period as the August 7, 1992 indictment did, on its face, properly plead that it was a reindictment of another case, the case which was the subject of the August 21,1990 indictment.
Texas Rule of Criminal Evidence 201 permits a trial court to take judicial notice of adjudicative facts. In particular, Rule 201 provides:
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
* ⅜ * ⅜ * ⅜
*607 (e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
The trial court, in the present case, took proper judicial notice of the following undisputed facts which proved the limitations statute had been tolled: . (1) the indictment alleged, on its face, it was a reindictment of a pending case; and (2) the original indictment had been returned on August 21, 1990, well within the applicable limitations period. Appellant never objected to the court’s taking judicial notice of these facts. Furthermore, appellant did not request an opportunity to be heard, at which time, under Rule 201(e), he would have been entitled to contest the appropriateness of the court’s actions by producing evidence calling such actions into question. His failure to object, in effect, waived his right to raise this matter on appeal. Furthermore, because no objection was made, appellant was not entitled to a Rule 201(g) instruction as to the judicially-noticed facts as there was no dispute or question as to their validity to be presented to the jury. See Ex parte Morin, supra. Accordingly, because there was no dispute as to the statute of limitations to be submitted to the jury, the trial court did not err in not giving a charge on limitations to the jury.
I would affirm the judgment of the court of appeals and would dismiss appellant’s petition as improvidently granted. I respectfully dissent to the opinion of the Court.