Opposition Brief — Paul Vallejo, Petitioner v. Texas
Supreme Court briefOct 4, 2019
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No. 18-9794
_____________________________
IN THE
SUPREME COURT OF THE UNITED STATES
_____________________________
PAUL VALLEJO,
Petitioner,
v.
STATE OF TEXAS,
Respondent.
______________________________
On Petition for Writ of Certiorari
To the Third Court of Appeals at Austin, Texas
___________________________
RESPONDENT’S BRIEF IN OPPOSITION
___________________________
MARGARET MOORE
District Attorney
Travis County, Texas
*MICHAEL SCOTT TALIAFERRO
Assistant District Attorney
Travis County, Texas
NANCY L. NICOLAS
Assistant District Attorney
Travis County, Texas
* Counsel of Record
P.O. Box 1748
Austin, Texas 78767
AppellateTCDA@traviscountytx.gov
Tel: (512) 854-9400
Fax: (512) 854-4206
ATTORNEYS FOR RESPONDENT
QUESTION PRESENTED
Should a petitioner be granted a writ of certiorari to consider a
claim that his prosecution is barred by the Ex Post Facto Clause, where the
state legislature eliminated the statutory limitations period before the
previously-applicable limitations period expired?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED .................................................................................. ii
TABLE OF CONTENTS ..................................................................................... iii
INTRODUCTION………………………………………………………………………v
TABLE OF AUTHORITIES ............................................................................... vi
BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI .........1
STATEMENT OF JURISDICTION .....................................................................1
STATEMENT OF THE CASE .............................................................................2
REASONS FOR DENYING THE WRIT .............................................................4
I.
Multiple federal courts have already considered this federal
constitutional question and have harmoniously concluded no ex
post facto violation results from the elimination of an unexpired
limitations period. ..................................................................................4
II.
There is no conflict among state courts that have applied the Ex
Post Facto Clause in cases where a statute of limitations period
was eliminated. ......................................................................................5
III.
The Court should not recognize and make a distinction, for the
first time ever, between a legislature’s authority to extend a
limitations period and its authority to eliminate one..........................6
IV.
Petitioner’s claim that modifications to unexpired statutes of
limitations periods alter the legal rules of evidence or change the
quantum of evidence required to convict the accused has been
rejected in several jurisdictions…………………………...……..…….8
iii
V.
Certiorari should be denied because the decision below is fully
consistent with this Court’s precedent. ................................................9
CONCLUSION ................................................................................................... 15
iv
INTRODUCTION
Statutes of limitations, when they exist, require the government to
commence prosecution for an offense within a designated period, or else the
case is subject to dismissal for untimely prosecution. It is well settled that
legislative bodies may amend statutes of limitations and apply them
retroactively, so long as doing so does not resurrect a prosecution that has
already been time-barred by the previously enacted statute of limitations.
Petitioner complains that he should benefit from the limitations period
that was in effect at the time he is alleged to have committed the offenses at
issue. He makes this complaint even though the Texas Legislature amended
the law before Petitioner could have asserted a limitations defense.
Numerous state and federal courts have considered similar scenarios—
including instances where the statutory amendment resulted in no, or an
indefinite, limitations period—but no violations of the Ex Post Facto Clause
have been found.
Petitioner invites this Court to deviate from long-standing principles
that govern the scope of the Ex Post Facto Clause and to unjustifiably restrict
legislatures’ authority to define the appropriate limitations period.
v
TABLE OF AUTHORITIES
Cases
Beazell v. Ohio, 269 U.S.167 (1925) ............................................................................ 10
Calder v. Bull, 3 U.S. 386 (1798) .............................................................................. 8,10
Carmell v. Texas, 529 U.S. 513 (2000) .......................................................................... 9
Chase Sec. Corp. v. Donaldson, 325 U.S. 304 (1945).................................................. 12
Collins v. Youngblood, 497 U.S. 37 (1990) .......................................................... 4,10,11
Commonwealth v. Duffy, 96 Pa. 506 (1881) ........................................................ 6,7,8,9
Commonwealth v. White, 61 N.Ed.3d 423 (Mass. 2016) .............................................. 6
Dobbert v. Florida, 432 U.S. 282 (1977)...................................................................... 12
Doggett v. United States, 505 U.S. 647 (1992) ...................................................... 12,13
Ex parte Vallejo, No. 03-18-00297-CR, 2018 Tex. App. LEXIS 9253 (Tex. App.—
Austin 2018) (not designated for publication)........................................................... 3
Ex parte Vallejo, No. PD-0061-19, 2019 Tex. Crim. App. LEXIS 291 (Tex. Crim.
App. Mar. 27, 2019) (not designated for publication)................................................4
Falter v. United States, 23 F.2d 420 (2d Cir. 1928), cert. denied, 277 U.S. 590 (1928)
................................................................................................................................... 12
Hawkins v. State, 549 So. 2d 552 (Ala. Crim. App. 1989)............................................ 6
Hoennicke v. State, 13 A.3d 744 (Del. 2010) ................................................................ 6
Huffman v. State, 116 A.3d 1243 (Del. 2015) ............................................................... 6
Kring v. Missouri, 107 U.S. 221 (1883) ....................................................................... 10
Miller v. Florida, 482 U.S. 423 (1987) ........................................................................... 9
People v. Frazer, 982 P.2d 180 (Cal. 1999) ................................................................. 13
People v. Hicks, 262 P.3d 916 (Colo. App. 2011) .......................................................... 6
People v. Russo, 487 N.W.2d 698 (Mich. 1992)........................................................... 12
Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App. 2011) ........................................... 6
Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998) .......................................... 13
vi
State v. Burns, 524 N.W.2d 516 (Minn. Ct. App. 1994) ............................................... 6
State v. Creekpaum, 753 P.2d 1139 (Alaska 1988) ...................................................... 9
State v. Morales, 236 P.3d 24 (N.M. 2010) ................................................................... 6
State v. Noble, No. CR-92-575, 1993 Me. Super. LEXIS 432 (1993) ........................... 6
Stogner v. California, 539 U.S. 607 (2003) ......................................................... 7,13,14
United States v. Brechtel, 997 F.2d 1108 (5th Cir. 1993) .......................................... 11
United States v. Knipp, 963 F.2d 839 (6th Cir. 1992) ........................................... 10,11
United States v. Roselli, No. 93-CR-220, 1993 U.S. Dist. LEXIS 18749 (N.D.N.Y.
1993) ......................................................................................................................... 12
United States v. Shepard, No. 4:10 CR 415, 2011 U.S. Dist. LEXIS 92519 (N.D. Ohio
2011) ........................................................................................................................... 5
United States v. Vickers, No. 13-CR-128A(Sr), 2014 U.S. Dist. LEXIS 64150
(W.D.N.Y. 2014).......................................................................................................... 5
Vasquez v. State, 557 S.W.2d 779 (Tex. Crim. App. 1977) ........................................ 13
Constitutional Provision
U.S. Const. amend. V........................................................................................... passim
Federal Statutes
18 U.S.C. § 4247 ............................................................................................................. 5
28 U.S.C. § 1257(a) ........................................................................................................ 1
State Statutes
ARK. CODE ANN. § 5-1-109 ............................................................................................. 5
COLO. REV. STAT. § 16-5-401 .......................................................................................... 5
CONN. GEN. STAT. § 54-193a .......................................................................................... 5
vii
D.C. CODE § 23-113 ........................................................................................................ 5
FLA. STAT. ANN. § 775.15(13)(b)..................................................................................... 5
IDAHO CODE § 19-401 ..................................................................................................... 5
KY. REV. STAT. ANN. § 500.050(1) .................................................................................. 5
MO. REV. STAT. § 556.036............................................................................................... 5
MONT. CODE ANN. § 45-1-205(1)(c) ................................................................................ 5
N.J. STAT. ANN. § 2C:1-6(a)(1) ....................................................................................... 5
12 R.I. GEN. LAWS § 12-12-17(a) .................................................................................... 5
S.D. CODIFIED LAWS § 22-22-1 ....................................................................................... 5
TENN. CODE ANN. § 40-2-101 ......................................................................................... 5
TEX. CODE CRIM. PROC. art. 12.01............................................................................... 2,3
TEX. PEN. CODE § 22.01 ............................................................................................... 2,3
UTAH CODE ANN. § 76-1-301 .......................................................................................... 5
VT. STAT. ANN. tit. 13, § 4501 ........................................................................................ 5
Rule
Supreme Court Rule 10 ..............................................................................passim
Secondary Materials
Note, The Statute of Limitations in Criminal Law: A Penetrable Barrier to
Prosecution, 102 U. PA. L. REV. 630, 652–53 (1954)………………………..…………...13
Gerald F. Uelmen, Making Sense out of the California Criminal Statute of
Limitations, 15 PAC. L. J. 35, 76–79 (1983)……………………………………..………..13
viii
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
Respondent, the State of Texas,1 respectfully files this brief in
opposition to Paul Vallejo’s petition for writ of certiorari.
STATEMENT OF JURISDICTION
The judgment of the Third District Court of Appeals at Austin, Texas,
affirming the trial court’s order denying Petitioner’s pre-trial application for
writ of habeas corpus, was entered on November 14, 2018. Petitioner filed a
timely motion for rehearing in the intermediate appellate court, but it was
denied. Petitioner then filed a timely petition for discretionary review with
the Texas Court of Criminal Appeals, but it was refused. Petitioner filed this
petition for writ of certiorari on June 21, 2019. This Court has jurisdiction
under 28 U.S.C. § 1257(a), which provides as follows:
Final judgments or decrees rendered by the highest court of a State
in which a decision could be had, may be reviewed by the Supreme
Court by writ of certiorari . . . where the validity of a statute of any
State is drawn in question on the ground of its being repugnant to
the Constitution, treaties, or laws of the United States, or where
any title, right, privilege, or immunity is specially set up or claimed
under the Constitution or the treaties or statutes of, or any
commission held or authority exercised under, the United States.
STATEMENT OF THE CASE
Petitioner was charged in a three-count indictment with the aggravated
1 Respondent, the State of Texas, will be referred to herein as “the State.”
1
sexual assault of one child, under Texas Penal Code § 22.01. Those offenses
were alleged to have been committed on or about May 1, 1999 (Count I); on or
about July 1, 1999 (Count II); and on or about July 1, 1999 (Count III). CR
3–4.2 The indictment was filed on January 30, 2017. CR 3. The indicted
charges are still pending.
“Petitioner filed a [pre-trial] writ of habeas corpus alleging violation of
ex post facto and statute of limitations.” Pet. App. 4. The Petitioner’s habeas
corpus application contends that the Texas Legislature’s 2009 elimination of
the statutory limitation period for the offenses of aggravated sexual assault of
a child resulted in an ex post facto violation. CR 33–38; See TEX. PEN. CODE
§ 22.01; TEX. CODE CRIM. PROC. art. 12.01 § 5(B) (2007) (amended 2009)
(current version at TEX. CODE CRIM. PROC. art. 12.01 (2019)).
Petitioner’s
claim is premised on the undisputed fact that the child alleged to be the victim
of all three offenses was born on October 19, 1985. CR 33.
Under the preexisting statute of limitations, in effect at the time of the
commission of the alleged offenses, the State would have been required to begin
prosecution by October 19, 2013, which marked the ten-year anniversary of the
2 “CR” refers to the clerk’s record in the original trial proceeding, which was prepared by the
District Clerk of Travis County, for Petitioner’s direct appeal to the Third Court of Appeals. Each such
reference will be followed by the applicable page number(s) of the clerk’s record.
2
victim’s eighteenth birthday. See TEX. PEN. CODE § 22.01; TEX. CODE CRIM.
PROC. art. 12.01 § 5(B) (2007) (amended 2009) (current version at TEX. CODE
CRIM. PROC. art. 12.01 (2019)).
In 2009, the Texas Legislature amended the applicable statute of
limitations to provide: “no limitation [period applies to] aggravated sexual
assault under Section 22.021(a)(1)(B), Penal Code . . . .”3 TEX. CODE CRIM.
PROC. art. 12.01(1)(B). The parties agree that the amendment occurred before
Petitioner could perfect a limitations defense, and that the enactment was
explicitly intended by the Legislature to apply to offenses predating the
amendment where the statute of limitations had not yet run. See Pet. App. 8;
TEX. CODE CRIM. PROC. art. 12.01.
The trial court denied Petitioner’s pre-trial application on February 20,
2018. CR 32. Petitioner appealed this ruling to the Third Court of Appeals
at Austin, Texas, which affirmed the trial court’s ruling in a memorandum
opinion, which was not designated for publication. See Ex parte Vallejo, No.
03-18-00297-CR, 2018 Tex. App. LEXIS 9253 (Tex. App.—Austin 2018).
Petitioner sought discretionary review from the Texas Court of Criminal
Appeals, which refused his request without further written order. Ex parte
3
TEX. PEN. CODE § 22.01(a)(1)(B) defines the offense of aggravated sexual assault of a child.
3
Vallejo, No. PD-0061-19, 2019 Tex. Crim. App. LEXIS 291 (Tex. Crim. App.
Mar. 27, 2019) (not designated for publication).
REASONS FOR DENYING THE WRIT
The relevant issue for this Court is whether the elimination of a
statutory limitations period, when applied to a defendant whose prosecution
was not yet time-barred, offends the Ex Post Facto Clause.
While courts in numerous jurisdictions have upheld a legislature’s
authority to eliminate a statute of limitations, no appellate court has ever
determined that there is a meaningful distinction between the extension and
the elimination of a statutory limitations period in the ex post facto context.
The intermediate appellate court’s decision is consistent with the Court’s
opinion in Collins v. Youngblood, 497 U.S. 37 (1990), and its progeny, which
discourage broadly construing the Ex Post Facto Clause to prohibit timely
modifications to a statute of limitations. Limitations have consistently been
found to be defenses of a uniquely procedural nature. Thus, no compelling
reason exists for this Court to exercise its discretion to review this case.
I.
Multiple federal courts have already considered this federal
constitutional question and have harmoniously concluded no ex post
facto violation results from the elimination of an unexpired
limitations period.
Texas is hardly unique in its decision to eliminate a limitations period
4
for the prosecution of certain sexual offenses against children.4 In fact, prior
to the 2009 amendment of the Texas law at issue in this case, the United States
Congress had already modified federal law in the same manner by enacting
the Adam Walsh Child Protection Act. See the Adam Walsh Child Protection
and Safety Act of 2006, Pub. L. No. 248-109, 120 Stat. 587 (codified as enacted
in 18 U.S.C. § 4247). The Second Circuit and the Sixth Circuit have upheld
that elimination of a statutory limitations period and found that, when
prosecution was not previously time-barred, the indefinite period for
prosecution does not violate ex post facto. United States v. Vickers, No. 13CR-128A(Sr), 2014 U.S. Dist. LEXIS 64150 (W.D.N.Y. 2014) (not designated
for publication); United States v. Shepard, No. 4:10 CR 415, 2011 U.S. Dist.
LEXIS 92519 (N.D. Ohio 2011) (not designated for publication). In the instant
case, the lower Texas court’s application of the Fifth Amendment Ex Post Facto
Clause aligns precisely with these federal court holdings.
Therefore, this
Court need not settle any issue involving the federal question raised. See Sup.
Ct. Rule 10.
The following is a non-exhaustive list of jurisdictions where there is no limitations period for
prosecution of sexual crimes against children: Arkansas (ARK. CODE ANN. § 5-1-109; Colorado (COLO.
REV. STAT. § 16-5-401); Connecticut (CONN. GEN. STAT. § 54-193a); Florida (FLA. STAT. ANN.
§ 775.15(13)(b)); Idaho (IDAHO CODE § 19-401); Kentucky (KY. REV. STAT. § 500.050(1); Missouri (MO.
REV. STAT. § 556.036); Montana (MONT. CODE ANN. § 45-1-205(1)(c)); New Jersey (N.J. STAT. ANN.
§ 2C:1-6(a)(1)); Rhode Island (12 R.I. GEN. LAWS § 12-12-17(a); South Dakota (S.D. CODIFIED LAWS
§ 22-22-1); Tennessee (TENN. CODE ANN. § 40-2-101); Utah (UTAH CODE ANN. § 76-1-301); Vermont
(VT. STAT. ANN. tit. 13, § 4501); Washington, D.C. (D.C. CODE § 23-113).
4
5
II.
There is no conflict among state courts that have applied the Ex Post
Facto Clause in cases where a statute of limitations period was
eliminated.
Numerous state courts have been presented with ex post facto challenges
where a limitations period has been repealed, yielding consistent results. The
Texas Court of Criminal Appeals opined that “statutes of limitations . . . may
be changed or repealed without violating constitutional prohibitions against ex
post facto laws in any case where a right to acquittal has not been absolutely
acquired by the completions of the period of limitations.” Phillips v. State, 362
S.W.3d 606, 612 (Tex. Crim. App. 2011) (internal citation omitted).
This
sentiment was consistent with earlier holdings in other jurisdictions, including
Commonwealth v. Duffy, 96 Pa. 506 (1881); Hawkins v. State, 549 So. 2d 552
(Ala. Crim. App. 1989); State v. Noble, No. CR-92-575, 1993 Me. Super. LEXIS
432 (1993); State v. Burns, 524 N.W.2d 516 (Minn. Ct. App. 1994); State v.
Morales, 236 P.3d 24 (N.M. 2010); and Hoennicke v. State, 13 A.3d 744 (Del.
2010). The same holding was reached more recently by state courts in People
v. Hicks, 262 P.3d 916 (Colo. App. 2011); Huffman v. State, 116 A.3d 1243 (Del.
2015); Commonwealth v. White, 61 N.Ed.3d 423, 430 (Mass. 2016).
The State is unaware of any court that has reached a contrary
conclusion, or any case that would provide any support for Petitioner’s claim
that this is an important federal question that needs to be settled.
6
The
resounding accord among lower courts illustrates why this Court should
decline to grant certiorari. See Sup. Ct. Rule 10.
III.
The Court should not recognize and make a distinction, for the first
time ever, between a legislature’s authority to extend a limitations
period and its authority to eliminate one.
Petitioner attempts to draw some demarcation between the legislature’s
power to expand, versus eliminate, a limitations period.
See Pet. App. 8.
This is a distinction without a difference.
No court has ever recognized such a distinction when considering an ex
post facto claim. In the cases addressed supra at II., courts relied on previous
cases involving both extended and repealed statutes of limitations without
noting any difference in precedential value. Even this Court has referred to a
legislature’s power to repeal or extend a limitation period, with retroactive
application, so long as the benefit of an expired limitations period has not
already accrued.
See Stogner v. California, 539 U.S. 607, 618–19 (2003)
(citing Duffy, 96 Pa. at 514). “In any case where a right to acquittal has not
been absolutely acquired by the completion of the period of limitation, that
period is subject to enlargement or repeal without being obnoxious to the
constitutional prohibition against ex post facto laws.” Id. (quoting Duffy, 96 Pa.
at 514) (emphasis added).
Petitioner claims that a lawmaking body has absolute power to extend
7
an unexpired limitations period in finite increments.
See Pet. App. at 8.
Petitioner then contends that lawmakers cannot also do away with a
limitations period entirely.
Id.
This invites an absurd result.
Such
divergent outcomes, with no underlying rationale, would permit legislatures to
enact perpetual extensions or extensions of such a length that they would serve
the same practical function as the elimination of a limitations period. This
Court should decline to entertain Petitioner’s unsupported position that the
elimination of a statutory limitations period presents an important
constitutional question, where he has conceded that the extension of a
limitations period does not.
IV.
Petitioner’s claim that modifications to unexpired statutes of
limitations alter the legal rules of evidence or change the quantum of
evidence required to convict the accused has been rejected in several
jurisdictions.
Petitioner asserts that the statutory amendment, which eliminated the
limitations period for prosecution, altered “the legal rules of evidence and
requires less or different testimony than the law required at the time of the
commission of the offense to convict the accused.” See Pet. App. 7–8 (citing
Calder v. Bull, 3 U.S. 386, 390–91 (1798)). To support his claim, Petitioner
relies on Carmell v. Texas, to illustrate a substantive change that violates ex
post facto laws if applied retroactively. See Pet. App. 7–8; Carmell v. Texas,
8
529 U.S. 513, 522 (2000). That opinion is inapposite because Carmell involved
an amendment to an evidentiary statute that impacted whether the State need
corroborate a child victim’s testimony about a sexual offense for a conviction to
be legally sufficient. 529 U.S. at 516.
Additionally, arguments like Petitioner’s have been raised and rejected
by lower courts in other jurisdictions.
In Duffy, the Supreme Court of
Pennsylvania contemplated this argument and denied it, holding, “the period
of limitation is not a subject of proof at all.” 96 Pa. at 514. More recently, in
State v. Creekpaum, the Supreme Court of Alaska found that the retroactive
application of a statute of limitations did not impact the “quantity or the degree
of proof necessary to establish” the guilt of the accused. 753 P.2d 1139, 1142
(Alaska 1988) (citing Miller v. Florida, 482 U.S. 423, 435 (1987) (quoting
Dobbert v. Florida, 432 U.S. 282, 294 (1977))).
The Court should deny
Petitioner’s claim.
V.
Certiorari should be denied because the decision below is fully consistent
with this Court’s precedent.
This Court has previously recognized that the categories of ex post facto
laws are “so well known that their citation may be dispensed with . . . . [A]ny
statute which punished as a crime an act previously committed, which was
innocent when done; which makes more burdensome the punishment for a
9
crime, after its commission, or which deprives one charged with crime of any
defense available according to law at the time when the act was committed, is
prohibited as ex post facto.” Beazell v. Ohio, 269 U.S. 167, 169–70 (1925).
Petitioner claims that the 2009 amendment lifting the limitations period
deprives him of a defense available at the time the act was committed. See
Pet. App. 8 (citing Calder, 3 U.S. at 390).
This Court previously considered the meaning of “defenses” for purposes
of ex post facto analysis when it stated in Collins v. Youngblood that “a law
that abolishes an affirmative defense of justification or excuse contravenes [the
Ex Post Facto Clause] because it expands the scope of a criminal prohibition
after the act is done.” 497 U.S. 37, 49 (1990). In that decision, the Court
warned against broadly construing the Ex Post Facto Clause to prohibit
amendment of procedural rules in a way that would merely “alter the situation
of a party to his disadvantage.” Id. at 50 (overruling Kring v. Missouri, 107
U.S. 221 (1883)). Since Collins was decided, one court has noted that the pre-
Collins approach confused “procedural defenses with defenses to elements of
the crime.”
United States v. Knipp, 963 F.2d 839, 843 (6th Cir. 1992).
Petitioner’s assertion that his unperfected statute-of-limitations defense is
indistinguishable from defenses relating to the elements of the offense relies
upon the very rationale that the Court rejected when it overruled Kring.
10
Lower federal courts have consistently relied on Collins as authority to
find that a motion to dismiss based on an expired limitations period is not a
defense within the meaning of ex post facto. See, e.g., Knipp, 963 F.2d at 843;
United States v. Brechtel, 997 F.2d 1108, 1113 (5th Cir. 1993). Pleading an
expired limitations period may be a “defensive measure,” but that does not
make it a “‘pure’ defense, which defeats one or more of the elements of a crime.”
Knipp, 963 F.2d at 843. As the Brechtel court articulated, “only statutes
withdrawing defenses related to the definition of the crime, or to the matters
which a defendant might plead as justification or excuse” are within the
meaning of the Ex Post Facto Clause. 997 F.2d at 1113.
The State is unaware of any published or unpublished opinion in which
any state or federal appellate court has ever declared that the elimination of a
statutory limitations period, where one previously existed, removes a defense
from a criminal defendant. This point bears repeating: Petitioner fails to cite
a single case (and the State is aware of no such case) involving the Ex Post
Facto Clause in which any appellate court has issued an opinion in conflict
with the decision below. There being no deprivation of a defense for ex post
facto purposes, the Court should deny the petition.
Further, there is no basis for Petitioner to claim that fundamental
fairness is offended when the statute of limitations was amended prior to the
11
expiration of the pre-amendment limitations period.
A procedural change
that works to the detriment of the accused is not, per se, ex post facto. People
v. Russo, 487 N.W.2d 698, 701 (Mich. 1992) (citing Dobbert v. Florida, 432 U.S.
282, 292–93 (1977)). The expansion of a limitations period was contemplated
by Judge Learned Hand, speaking for the court in Falter v. United States:
Certainly it is one thing to revive a prosecution already dead, and
another to give it a longer lease of life. The question turns upon
how much violence is done to our instinctive feelings of justice and
fair play. For the state to assure a man that he has become safe
from its pursuit, and thereafter to withdraw its assurance, seems
to most of us unfair and dishonest. But, while the chase is on, it
does not shock us to have it extended beyond the time first set, or,
if it does, the stake forgives it.
23 F.2d 420, 426–27 (2d Cir. 1928), cert. denied, 277 U.S. 590 (1928),
superseded by statute as recognized in United States v. Roselli, No. 93-CR-220,
1993 U.S. Dist. LEXIS 18749 (N.D.N.Y. 1993).
Statutes of limitations are legislative constructs that serve multiple
policy purposes. Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945).
“The common law recognized no right of criminals to repose.”
Doggett v.
United States, 505 U.S. 647, 668 (1992) (O’Connor, J., dissenting). “[M]any
serious offenses, such as murder, typically carry no limitations period at all.”
Id. (citing Note, The Statute of Limitations in Criminal Law: A Penetrable
Barrier to Prosecution, 102 U. PA. L. REV. 630, 652–53 (1954) (comparing state
12
statutes of limitations for various crimes); Gerald F. Uelmen, Making Sense
out of the California Criminal Statute of Limitations, 15 PAC. L. J. 35, 76–79
(1983)). In Texas, limitations have been described as procedural rules that
operate “as an act of grace for the benefit of potential defendants, a voluntary
surrendering by the people of their right to prosecute.” Proctor v. State, 967
S.W.2d 840, 843 (Tex. Crim. App. 1998) (citing Vasquez v. State, 557 S.W.2d
779, 781 (Tex. Crim. App. 1977)).
While these policy concerns apply generally to all criminal prosecutions,
child sexual abuse raises unique considerations for a legislature to consider.
This point was observed by Justice Kennedy in his dissent in Stogner v.
California:
The California Legislature noted that “young victims often delay
reporting sexual abuse because they are easily manipulated by
offenders in positions of authority and trust, and because children
have difficulty remembering the crime or facing the trauma it can
cause.” People v. Frazer, 982 P.2d 180, 183–84 (Cal. 1999). The
concern is amply supported by empirical studies.
539 U.S. 607, 649 (2003) (internal citations omitted).
The psychological effects of childhood sexual abuse, are often due in part
to the violation of trust between the offender and the victim, including “deep
and lasting hurt.”
Stogner, 539 U.S. at 649.
The Texas Legislature’s
removal of a procedural impediment for victims who often delay reporting due
13
to the very nature of the crime committed against them not only reflects these
important policy considerations, but advances the cause of justice.
Because Petitioner cannot demonstrate that the modification of an
unexpired limitations period deprives him of a defense or violates fundamental
fairness, this Court should decline further consideration of his petition.
14
CONCLUSION
On the basis of the foregoing arguments and authorities, the petition for
a writ of certiorari should be denied.
Respectfully submitted,
MARGARET MOORE
District Attorney
Travis County, Texas
*MICHAEL SCOTT TALIAFERRO
Assistant District Attorney
Travis County, Texas
NANCY L. NICOI,AS
Assistant District Attorney
Travis County, Texas
* Counsel of Record
P.O. Box 1748
Austin, Texas 78767
App ellateTCDA@traviscountytx. eov
TeI: (trrZ) SSa-SAOO
Fax: (512) as+-+zoo
ATTORNEYS FOR RESPONDENT
15
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