### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00273- CR

Leobardo Puente Mart inez, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 10- 3025 28, H ONO RAB LE CLIF F ORD B ROW N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant L eobar do Puente Martinez g uilty of sexual assault. See Tex. Penal Code § 22.011(a )(1) (A). T he jury assessed punishment a t twenty y ear s’ imprisonment. On appea l, Martinez asser

ts that (1) h i s p ro s ec u t ion for this offe nse was barr ed by the statute of limit ations and (2) the trial court err ed i n failing to instruct the jury on the applicable statute of limit ations. We affirm the judg ment of the trial c ourt.
BACK GR OUND On Octobe r 8, 1999, “Jessica L opez,” the complaining witness in this case , was at 1

a dance club in Austin when she met a man whom she later identified as Martinez. L opez had seen Martinez in the club previously , and Martinez told L opez that his name was Antoni o . M ar t i n ez

We refe r to the complaining witness by a fic titious name to prote ct her identity

. 1and L opez share d a drink and had their picture taken by a photogr apher while they were at the

club. M ar t i n ez t old L opez that he neede d to g o back to his apar tment to g et his wallet. L opez
acc ompanied Mar

tinez back to his apartment, a t which point the alleg ed sexual assault beg an. L opez testified that Martinez lured her into the bedroom and deman d ed t h at she perf orm sexual int erc ourse. When L opez r efuse d, Martinez beg an hitting and biting L opez on her fac e and body

. Martinez penetr ated L opez’s sexual orga n with his sex ual org an, and w hen L opez
scre amed for him to stop, Martinez threa tened to kill her if she did not comply

. After the assault was complete, Martinez fell aslee p and L opez car efully g ot dresse d and sneake d out throug h a window. L opez went home to trea t the open wounds on he r fa ce a nd then ca lled 911 to report the a ssault. L opez g ave responding office rs the picture of her and Martinez from t h e club; an approximate addre ss for his apa rtment; and a phone number for his a partment, explaining that she had previously dated Martinez’s roommate. L opez a g ree d to submit to a sexual a ssault e x am, and DNA and other fore nsic evidenc e was rec overe d from her body and clothing that same day

. L opez met with Detec tive Gar

y Z umwalt from the Austin Police Depa rtment’s Sex Crimes Unit a few day s afte r the assault, but Detec tive Zu m wa l t d id not obtain a formal statement from L opez about the assault at that time. Six months later, the results from the sexual assault exam reve aled DNA of an unknown male that did not match that of any suspect in the nationwide criminal databa se. Detec tive Z umwalt’s investiga tion of the assault was suspended and the unidentified DNA sample was enter ed into the criminal databa se in the hope tha t a future match could identify the assailant. I n late 2010, Detect i v e Stephen Andre ini lear ned that the DNA sample rec overe d from L opez’s alleg ed assault matched that of a sample rec ently rec overe d from Martinez. Detec tive Andre ini contac ted L opez, who g ave a written statement about the sexual assault. Martinez was 2indicted on Fe bruar y 25, 2011 for the alleg ed sexual assault. Following a three day trial, the jury found Martinez g uilty of the sexual assault and assessed punishment at twenty y ear s’ imprisonment. This appea l followed.

DISCUSSIO N

Martinez raises two issues on appea l. First, he asser ts that his prosec ution was barr ed by the ten-y ear statute of limit ations. See Tex. Code Crim. Proc. art. 12.01(2)( E). Second, Martinez claims that the trial court err ed in failing to instruct the jury on the applicable statute of limit ations. We addre ss eac h of these issues se para tely

. Statute of limitat ions

I n his first issue on appea l, Martinez claims that his prosec ution was time-barr ed by the ten-y ear statute of limit ations. Gene rally , the statute of limit ations for sexual assault of an adult is ten y ear s from “the date of the commission of the offe nse.” See id. Howeve r, there is no statute 2

I n Octo b er 1999—when this offe nse alleg edly occur red—the applicable statute of 2 limit ations for sexual assault was five y ear s. See Act of Apr. 23, 1999, 76th L eg ., R.S., ch. 39, § 1, art. 12.01(4)( C), 1999 Tex. Gen. L aws 83, 84 (ame nded 2001) (cur rent version at Tex. Code Crim. Proc. art. 12.01(2)( E)). Howeve r, in 2001, the L eg islature amende d the applicable statute of l i m i t ati ons for sexual assault to the term curr ently ref lected in article 12 of the Code of Crimi n al Procedur e. See Act of Apr. 20, 2001, 77th L eg ., R.S., ch. 12, § 1, art. 12.01(1)( B) , (2)( E), 2001 Tex. Gen. L aws 20 (amended 2003) (cur rent ve rsion at Tex. Code Crim. P roc. a rt 12.01(1)( C), (2)( E)). Martinez conce des that the 2001 amendment eff ectively extended the statute of limit ations for this offe nse beca

use at the time of the amendment’ s adoption the orig inal five-y ear statute of limit ations had not expired. See Phillips v. State , 362 S.W .3d 606, 612–13 (Tex. Crim. App. 2011) (explaining that if statute of limit ations is e x tended afte r offe nse committed, pr osecution is constitutional only if orig inal statute of limit ations “had not alre ady run befor e the law was chang ed”)

. For convenie nce, we cite to the curr ent version of the statute beca use there have b ee n n o i n t er v ening amendments since 2001 that a

re ma terial to our disposition of this appeal. 3of limit ations for sexual assault “if during the investiga tion of the offe n s e biologica l matter is

collecte d and subjected to fore n s i c DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is rea dily asce rtained.” Id. art. 12.01(1)( C).

Martinez was indicted i n t h is case more than ten y ear s afte r the alleg ed sexual assault occur

red. See id. arts. 12.01(2)( E); 12.05(b)–( c) (t o l ling statute of limit ations during p en d ency of i ndictment). Martinez asser ts that in 1999, L opez provided Detective Zumwal t wi t h

so much inform ation about her assailant—including a photogr aph of Martinez, his telephone number, and his approximate addre ss—that Detec tive Z umwalt could have re ad i l y asce rtained Martinez’s identity at that time. There fore , acc ording to Martinez, article 12.01(1)( C) of the Code of Criminal Procedur e is inapplicable in this case becau s e h i s i dentity could have been rea dily

asce rtained at or nea

r the time the DN A sample wa s collecte d. See id. art. 12.01(1)(C) (removing statute of limit ations for sexual assault if unidentified DNA collecte d during investiga tion). Thus, Martinez claims that his prosec ution was barr ed by the defa ult t en -y ea r statute of limit ations for sexual assault. See id. art. 12.01(2) (E).

Martinez raises the s t at u t e of limit ations issue for the first time on appea l. “[T] he statute of limit ations is a proce dural rule [] in the nature of a defe nse” that opera tes as an “a ct of g rac e for the benef

it o f p o t en tial defe ndants, a voluntary surre ndering by the people of their rig ht to prosec ute.” Proctor v. State , 967 S.W .2d 840, 843 (Tex. Crim. App. 1998). For this rea son, the court of criminal appea ls has conclude d that the statute-of- limit ations defe nse “is forf eited if not

asser ted at o r befor e the g uilt/i nnocenc e stag e of trial.” Id. The court explained that this defe nse may be prese rved by either (1) filing a pre- trial motion to dismiss under article 27.08(2) of the Code

4of Criminal Procedur e or ( 2) re questing a jury instruction on the statute of limitations. Id. (noting that State has burden to prove bey ond rea sonable doubt that statute of limit ations has not e x pired).

Rece ntly , the court of criminal appea ls car ved out an exception to the g ener al rule that a statute-of

-limitations defense must be ra ised at or be fore trial. See P hillips v. State , 362 S.W .3d 6 0 6 , 6 1 6

– 1 7 ( T e x. Cr

im

. A p p . 2 0 1 1 )

. A s th e c o u

r t e xp la in e d , w h e n th e le g is la tu r e e xte n d s th e s ta

tu te of limit ations afte r the limit ations period has expired for a g iven offe nse, prosec ution under the new statute of limit ations for that offe nse would constitute an application o f u n c o n stitut ional ex post fac to law. See id. at 616 (citing Stogner v. Calif ornia , 539 U.S. 607, 616–19 (2003)) ; see also U.S. Const. art. I , § 9 cl. 3 (prohibiting passag e of e x post facto law ); Tex. Const . art. I , § 16 (same)

. Be cause t h er e is a “ca

teg orica l prohibition” ag ainst ex post fac to laws, a defe ndant does not waiv e h i s rig ht to challeng e his conviction on ex-post-facto g rounds by failing to object at trial. See Phillips , 362 S.W .3d at 616–17 (citing Ieppe rt v. State , 908 S.W .2d 217, 220 (Tex

. Crim. App. 1995)). There fore , the court held t hat a defe ndant m ay raise a s tat u t e- o f- l i mitations challeng e on ex-postfac to gr ounds for the f

irst time on appeal. Id. I n this case , the statute of limit ations fo r sexual assault was extended befor e the orig inal five-year statute of limit ations for this offe nse had expired. See supra n.2. There fore , this

case does not prese nt an ex-post-facto violation. See Phillips , 3 6 2 S

. W

. 3 d at 612. Neve rtheless, Martinez asser

ts Phillips est abli shed that a defe ndant may raise any statute-of- limit ations challeng e—re g ardle ss o f wh et h er or not it is founded on ex-post-facto g rounds—as long as the

rec ord establishes that the limit ations period had ex pired as a matter of law. See id. at 617–18 (noting that if “indictment shows on its face that prosec ution is absolutely barr ed by the s tatute of limit ations,” then statute- of-limitations defense is question of “pure law,” not f act)

. 5Even assuming, without deciding , that Phillips indicates a defe ndant may raise a

statute-of- limit ations defe nse for the first time on appea l if the defe nse involves a “ pure” question of l aw, Martinez’s defe nse i n this case still fails. The statute- of-limitations defense that Martinez

asser ts nece ssarily involves a fac tual issue—i.e., whether his identity could have rea dily been

a s c e r ta in e d in 1 9 9 9 s u c h th a

t a r ti c l e 1 2

. 0 1 ( 1 ) ( C) d o e s n o t a p p ly

. T h is is a s ta

tu te
- o f

- li mi ta ti o n s d e f e n s e that is “base d on fac ts,” and there fore is exactly the ty pe of defe nse that Phillips cautioned must be raised at or befor e trial. See id. at 618 (noting that statute-of- limit ations defe nse that involves fac tual dispute such as tolling must b e prese rved beca use defe ct may be repa

rable ). Be cause Martinez failed to raise his statute-of- limit ations defe nse either by pre- trial motion or by reque sting a jury instruction, he has not prese rved this issue for appeal. See id. Th er efore, we overr ule M artinez’s first appe llate issue. Jury instruction

I n his second issue on appea l, Ma rtinez a sserts that the trial court err ed in f ailing to instruct the jury on the statute-of- limit ations issue. Howeve r, as Martinez conce des, his trial counsel

never reque sted an instruction on the statute of limit ations. Martinez never theless contends that the trial court’s failure to include a statute-of- limit ations instruction on its own volition was eg reg iously harmful err or that denied him a fair and impartial trial. See Almanza v. State ,. 686 S.W .2d 726, 731 ( T e x. Cr im

. A

p p . 1 9 9 4 ) ( e xp la in in g th a

t ju r o r - c h a r g e e r r o r ma y , in r a r e c ir c u ms ta n c e s , s u p p o r t r e v e r s a l even if err or not raise d in reque sted jury instruction). The court of criminal appea ls has held that it is the defe ndant’s duty to reque st a jury instruction on the statute of limit ations in order to prese rve a complaint about the jury char g e for 6appea l. See Tita v. State , 267 S.W .3d 33, 39 (Tex. Crim. App. 2008). There fore , we conclude that

Martinez was not eg reg iously harm ed by the trial court’s failure to g ive a statute-of- limit ations instruction. See id. ; see also Moss v. State , No. 03-95-00495- CR, 1997 WL 139330, at *2–3 (Tex. App.—Austin Mar. 27, 1997, pet. ref ’d) (not desig nated for publication) (conc luding no Almanza

ty pe harm from fa ilure to instruct jury on statute-of- limit ations defe nse). We overr ule M artinez’s second a ppellate issue.

CONCLUSION Having overr

uled Martinez’s two appellate issues, we aff ir m the trial court’s judgme nt of conviction.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Mar ch 20, 2014 Do Not Publish

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