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

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W I L L I A M R A Y P H I L L I P S , A p p e l l a n t

v . T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E T E N T H C O U R T O F A P P E A L S

M c L E N N A N C O U N T Y

K E L L E R , P . J . , f

i l e d a d i s s e n t i n g o p i n i o n i n w h i c h K E A S L E R , a n d H E R V E Y , J J . , j o i n e d . The Court appea

rs to misunderstand the nature of the ex post facto prohibition. Be cause the leg islature has not passed an ex post facto law, there has been no ex post facto violation in this case
. And bec ause a

ppellant failed to ra ise his statute-of-limitations defense at trial, he ha s forfe ited his complaint. A. Only the Legislature Can Com m it an Ex Post Facto Violation
The United States Constit ution provides: “No state shall

. . . pass any
. . . ex post fac to L aw.” 1

U.S. C O N S T . art. I , § 10, cl. 1. 1P HILL IP S DISS ENT — 2

The Texas Constitution provide s: “ No

. . . ex post fac to la w . . . shall be made.” Thus, something 2

can be “ex post fac to ” o n l y i f i t i s a “law,” and the lang uag e in the United States Constit ution specifie s that a “la

w” f or these pur

poses is something that is “pa ssed.”
I n Ortiz v. State , we explained: “I n both provisions, the lang uag e is direc ted at the leg islature,

not the courts.” And though the Court now relies upon Ieppe rt v. State , we explained in Ortiz that 3 4 “[i] n Ieppe rt v. State , we did no t appea r to appre ciate the distinction.” Under Supreme Court 5
prec edent, we explained, “the ex post facto clause does not apply to the judiciary .” Specifica lly , “an 6

ex post facto problem does not arise from a trial court’s err oneous retroa ctive application of a statute, but only if the statute itself has retroa ctive eff ect.” Although the retroa ctive application of a statute 7 by the judiciary may implicate due proce ss, “due proce ss does not incorporate all of the ex post facto
clause ’s s trictures.” I n finding that “the pr otections are not coextensive,” the Supreme Court has 8

T E X
. C O N S T
. art. I , § 16. 2
93 S.W .3d 79, 91 (Tex. Crim. App. 2002). 3
908 S.W .2d 217 (Tex. Crim. App. 1995). 4
Ortiz , 93 S.W .3d at 91. I n any event, Ieppe rt addre ssed only whether ex post facto claims 5 wer e forf eitable; it did not ad d re s s whether the defe ndant’s statute-of- limit ations claim, if true, would establish an ex post facto violation. See Ieppe rt , 908 S.W .2d at 218 (“The Court of Appea ls did not rea ch the merits of” the ex post facto claim, “holding instead that appellant forf eited the rig ht to complain of it on appea l beca use he did not first raise it in the trial court.” ), 220 (holding that “ex post fac to prohibitions do not merely confe r upon the pe ople a waivable or forf eitable right not to have their conduct penalized retroa ctively ” and rema nding for proce eding s consistent with the opinion). Ortiz , 93 S.W .3d at 91 (c iting Rogers v. Tenne ssee , 532 U.S. 451 (2001)). 6 Id. (citing Johnson v. United States , 529 U.S. 694 (2000) and summarizing its holding in 7 a fo l l o wi n g pare nthetical as: “bec ause new statute did not apply retroa ctively , no ex post facto question arises; only

question is whether the old statute authorized the trial cour t’s action”)

. Id. (citing Rogers , 532 U.S. at 457-62). 8P HILL IP S DISS ENT — 3

“pointed to ‘important instit utional and contextual differ ence s betwee n leg islating, on the one hand,
and common law decisionmaking , on the other.’” And in a statute-of- limit ations context, we have 9 specific ally rec og nized that the Ex Post Facto Clause “is a limit ation upon the power s of state leg islatures an d n o t state courts.” Contrary to the Court’s contention that this is a “subtle” 1 0
arg ument, the distinction between le g islative action and judicia l decision-making is crucia l.

1 1
The Court’s attempt to distinguish Ortiz is internally inco n s istent. The Court first
acknow ledg es that the insertion of the words “or s t atus ” in the jury char g e was mere jury char g e

err or, even though the words “or status” wer e in a later version of the statute but not in the version
of the statute in eff

ect at the time the offe nse was committed. But the Court say s that it would be 1 2

an ex post facto violation if instead of “or status,” the extraneous words wer e “a public serva nt.” The Court’s interpre tation Ortiz is simpl y at odds with the express lang uag e and holding in that case

. The Court claims that a j u ry ch arg e err oneously containing the words “a public serva nt”
would be “an ex post

facto violation under Johnson .” But the Court’s own pare nthetical quote from 1 3
Johnson eff

ectively ref

utes the C ourt’s conte ntion: “To prevail on this sort of ex post facto claim,
J ohnson must show

. . . that the law he challeng es operates retroa ctively (that it applies to c onduct completed be fore its enactment). 1 4

Id. (quoting Rogers , 532 U.S. at 460). 9
Proctor v. State , 967 S.W .2d 840, 845 (Tex. Crim. App. 1998). 1 0
See Court’s op. at 18. 1 1 Court’s op. at 12 n.32. 1 2
I d. 1 3 See id. (quoting Johnson , 529 U.S. at 699) (e mphasis added)

. 1 4P HILL IP S DISS ENT — 4

The Court contends that Carmell v. Texas found the “application” of a new law to run afoul 1 5
of the ex post

facto prohibition “eve n though the law itself was not fac ially retroa ctive.” The Court 1 6
cites to pag es 530-31 in Carmell as support, but I do not see any thing in those pag es that stands for
the proposition attributed by the Court. And I am unable to find any passag e in Carmell that say s 1 7
this. 1 8
The law at issue in Carmell chang ed the quantum of evidenc e nece ssary t o support a conviction for cer

tain sexual offe nses—per

mitti ng conviction on uncorr oborate d testimony in some situations in which corr oboration had previously been require d. The statute contained no saving s 1 9 provision, so it was applicable to any case that met its terms, whi ch i n cl u d ed subsequent trials

2 0
reg ardle ss of whethe r the off enses we re c ommitt ed bef ore or afte r the statutory

chang e. 2 1
The Court also contends that Scott v. State involved a holding that an ex post facto violation 2 2
529 U.S. 513 (2000). 1 5 Court’s op. at 7; see also Court’s op. at 19. 1 6
See Carme ll , 529 U.S. at 530-31. 1 7 See id. , passim. 1 8
See Carmell , 529 U.S. at 516-18 (addr essing chang es to T E X
. C O D E C R I M
. P R O C
. ar t. 1 9 38.07). See Acts 1993, 73 L eg ., ch. 200, § 1 & passim ; Acts 1993, 73 L eg ., ch. 900, § 12.01 &

2 0 rd rd passim

. See Carmell , 529 U.S. at 530 (“U nder the law in eff ect at the time the acts wer e 2 1 committed, the prosec ution's case was leg ally insufficient and petitioner was entitled to a judgme nt of acquittal, unless the State could produce both the victim’s testimony and corr oborative evidenc e. The amende d law, howeve r, chang ed the quantum of evi d en ce n ecessary to sustain a conviction; under the new law, petitioner could be (and was) convicted on the victim's testimony alone, without any corr oboratingevidenc e.”)

. 55 S.W .3d 593 (Tex. Crim. App. 2001). 2 2P HILL IP S DISS ENT — 5

occur s when a statute is not “fa cially retroa ctive” but is applied retroa ctively

. The Court is mistaken.
Scott held that the enhanc ement statute at issue was retroa ctive. Although the statute contained the 2 3
“standa rd” saving s clause applicable to enhanc ements, the standard saving s clause was not sufficie nt for ex post facto purposes beca use the enhanc ement was not a standard enhanc ement. Ordinar ily , 2 4

a law cre ating an enhanc ement by prior conviction does not violate the Ex Post Facto Clause so long

as the law was in place befor e the commission of the new offe nse for which the prior conviction is being used to enhanc e, even though the prior conviction may preda te the enhanc ement provision. 2 5
No ex post facto violation occurs in that situation beca use the enhanc ement “punish[es] the new offe nse rathe r than the prior conviction.” But the enhanc ement provision at issue in Scott modified 2 6
what was previously an expli cit assura nce by statute that a defe ndant place d on defe rre d adjudication
would not be subject to “disqualifica tions or disabiliti es” if he succe ssfully completed his defe rre d adjudication. The leg islature could modify that statutory assura nc e f o r p e o p le who would be place d 2 7

on defe rre d adjudication in the future, but it could not modify that assura nce fo r p eople who had
been place d on defe rre d adjudication in the past. To preve nt the enhanc ement statute from having 2 8 unconstitutionally retroa ctive re a c h , the n, the leg islature should have draf ted a specia l saving s clause

Id. at 596-98; specifically see i d. at 5 9 6 (“ W e conclude that the L eg islature int ended to 2 3 permit the us e for

enhanc ement of de fer

red a djudications that were assessed be fore the enactment of the e nhance ment provision.”).

Id. at 596-98. 2 4 Id. at 596. 2 5 Id. 2 6 Id. at 596-98. 2 7 See id. 2 8P HILL IP S DISS ENT — 6

for the spe cial situation with which it was conf ronted, but it did not do so.
The Court claims that the prese nt case is analog ous to Scott , but it is not. I n Scott , it was the
enhanc ement provision itself that was retroa ctive; the trial court made no mistake in construing the meaning of th at p ro v i s i o n
. As will be discussed later, the statute at issue in the prese nt case contained a saving s provision tailored for the statute-of- limit ations context that preve nted the statute from having unconstitutionally retroa ctive re ach.
The Court sug g ests that its holding is supported by six statute-of- limit ations case s that found ex post facto violations. First, the Court cites Stogner v. California for the pr oposition t hat the 2 9 3 0
Ex Post Facto Clause forbids the resur rect i o n o f a t i m e-ba

rre d prosec ution. I n that case , the 3 1
California statute expressly authorized the resur rec tion of a time-barr ed prosec ution. The Supreme 3 2
Court’s statement that the “ Ex Post Facto Clause forbids resur rec tion of a time-barr ed prosec ution”
introduced a discussion about the Reconstruc tion Congr ess’s reje ction of a bill that would have done

The Court does not direc tly sug g est that its holding is supported J udg e L ear ned Hand’s 2 9 opinion in Falter v. United States , 23 F.2d 420 (2 Cir. 1928), but it cites Falter for the “ra tionale” d for the rule that a legislature cannot retroac tively extend a li mitations period for an offense that is alre ady barr ed by limit ations. See Court’s op. at 11 n.28. But J udg e L ear ned hand was addre ssing a statu t o ry am en d m ent that, by its terms, had retroa ctive rea ch. Falter , 23 F.2d at 425 (“I n November , 1921, the proviso was added by which the period was extended to six y ear s in the case of ‘off enses involving the defr auding or attempts to defr aud the United States or any ag ency there of, whether by conspirac y or not.’ 18 USCA § 582. The applicatio n o f t h e p ro viso to the case at bar being clear from its last sentenc e , the defe ndants arg ue that the amendme nt i s ex post facto legislation

. Perhaps they would be rig ht, if the ear lier statute had once run in their favor .”) (empha sis added)

. 539 U.S. 607 (2003).

3 0 Court’s op. at 13-15. 3 1
539 U.S. at 609. 3 2P HILL IP S DISS ENT — 7

so. I n the next para g raph, the Supreme Court ref err ed to State Supreme C o u rt s as holding that 3 3

“ laws reviving time-barr ed prosec utions ar e ex post facto .” I n its concluding para g raph, the 3 4 Supreme Court stated: “We conclude that a law enac ted afte r expiration of a previously applicable
limit ations period violates the Ex Post Facto Clause when i t is applied to revive a previously
time-barr ed prosecution.” Thoug h the S upreme Court used t he word “applied” in t h i s sentenc e, 3 5
it was clearly talki ng about an Ex Post Facto violation being cause d by the “law” it self, not by an (er roneous) application of the law.
The Court also relies upon State v. Sneed , an ear ly Supreme Court of Texas decision. The 3 6 3 7
Sneed opinion is brief, and the Court has quoted the opinion in its entirety

. For the convenie nce of
the re ader , I

set it out below:
I n this case the bar of the statute of limit ations of one y ear was completed befor e the code went into ope ration, by which the pe riod of limitation of prosecutions in such misdemeanors was extended to two y ear s. The state having neg lected to prosec ute within the time pr escr ibed for its own action, lost the rig ht to prosec ute the suit. To g ive an act of the l eg islature, passed afte r such loss, the effec t of reviving the rig ht of action in the state, would g ive it an opera tion ex post facto , which we cannot suppose the leg islature intended. 3 8
The Sneed court may have been sug g esting that it was construing the new statute narr owly to avoid

a constitutional violation, a common rule of construction g rounded on t h e p resumption that the

Id. at 616. 3 3 Id. at 617 (e mphasis added)

. 3 4 Id. at 632-33. 3 5 25 Tex. 66 (1860). 3 6 Court’s op. at 14-15. 3 7 Sneed , 25 Tex. at 67. 3 8P HILL IP S DISS ENT — 8

leg islature intended the law to comply with the constitution. But Sneed did not hold that an ex post 3 9 facto violation could arise from a trial court’s err oneous application of a statute. Even if it did, the
Ortiz decision would control beca use Ortiz is fa r m o re re cent, is from this Court, and contains a

more e x tensive and spe cific discussion re g arding the issue at hand. Third, the Court relies upon People v. Shedd , a Colo ra d o Supreme Court case
. I n that 4 0 4 1

case , the defe ndant raised a statute-of- limit ations claim at trial, and the trial court dismiss ed the case

on that basis. Affir

ming that decision, the Co l o ra d o S u p reme Court stated: “Retroa ctive 4 2 application of a statute of limit ations to revive a previously b arr ed prosec ution violates the
fundame ntal constitutional prohibition ag ainst ex post facto leg islation.” Significa ntly , the court 4 3
did not say that the defe ndant suffe red an ex post facto violation, nor did the court even hold that the

statute at issue in that case violated the ex post facto clause

. I t di d n o t h av e t o
. Be cause the 4 4
defe ndant timely raised a lim i t at i o n s claim, it was either true that the statute did not retroa ctively
extend limit ations for a time-barr ed prosec ution—perhaps by being narr owly construed to avoid an

ex post facto violatio n

— or it did opera te in such a retroa ctive manner , with such extension being
invalid under the prohibition ag ainst ex post facto laws. What i s signific ant is that the Colorado

See Lebo v . State , 90 S.W .3d 324, 329-30, 330 n.22 (Te x . Crim. App. 2002). 3 9 702 P.2d 267 (Colo. 1985). 4 0 Court’s op. at 15. 4 1 Shedd , 702 P.2d at 268. 4 2 Id. 4 3 See id. 4 4P HILL IP S DISS ENT — 9

court rec og nized that the ex post facto prohibition was direc ted ag ainst “leg islation.” But even if 4 5
the Colorado decision did stand for the proposition cited for it by the Court, it prec eded the United States Supreme Court dec isions in Rogers and Johnson upon which our Ortiz decision re lied.
I n a footnote, the Court cites Commonwealth v. Roche leau , a Massac husetts Supreme Co u rt 4 6 decision, and United States v. Fraidin , a fe dera l district court opinion. The Roche leau decision 4 7 4 8
held that indictments were barr ed by limit ations beca use limitations for a time-bar red pr osecution

cannot be leg islatively extended. Howeve r, t h e wo rd s “ ex post facto ” appea r nowher e in the 4 9
Massac husetts court’s opinion. And the Court’s own quotation from the Fraidin opinion is at odds 5 0
with the Court’s contention: The fede ral district c ourt said, “[B]ut such a statute cannot operate to revive offe nses which wer e barr ed at the time of its enac tment since it would in such case be ex post fac to.” Thus, Fraidin rec og nized that it was the opera tion of the statute that mattere d under the ex

5 1
Analy sis of the Colorado statute may be complicated by some unusual aspec ts of the case
. 4 5 Orig inally , sex offe nses in Colorado had a limit ations period of three y ear s. See People v. Holland , 708 P.2d 119, 119 (Colo. 1985). For sex offe nses in which the victim was a child under fiftee n y ear s of ag e, the 1982 amendment provided: “The period of time during which a person may be prosec uted shall be extended for an additional seven y ear s
. . . .” See id. at 119 n.2. No saving s provision was enac ted at the time the amendment was passed, but a provision purporting to express the leg islature’s intent was enac ted in 1985. See id. at 120. The intent provisio n wa s fra med in such a way as to comply with the rule later expressed in S t ogner : “The intent of the g ener al assembly in enac ting section 16-5-401( 6) and (7) in 1982 was to cre ate a ten- y ea r s t at u t e of limit ations as to offe nses specifie d in said subsections committed on or afte r Jul y 1, 1979.” See H

olland , 708 P.2d at 120. 404 Mass. 129, 533 N.E.2d 1333 (1989)

. 4 6 63 F. Supp. 271 (D.C. Md. 1945). 4 7 Court’s op. at 16 n.49. 4 8 Roche leau , 404 Mass. at 130-31, 533 N.E .2d at 1334. 4 9 See id. , passim

. 5 0 Fraidin , 63 F. Supp. at 276 (e mphasis added)

. 5 1P HILL IP S DISS ENT — 10

post facto clause

. I n any event, Roche leau and Fraidin wer e both decide d befor e the United States Supreme Court dec isions in Rogers and Johnson upon which our Ortiz decision re lied. Finally , the Court relies upon State v. Garcia , a Kansa s Supreme Court case
. The Court 5 2 5 3
contends that the case stands for the proposition that a defe ndant cannot waive an ex post facto claim
in the limit ations context, but the Court overlooks the fac t that the Kansa s court d re w a sharp
distinction betwee n a prosec ution that was outside the limit ations period an d a ca s e in which the period of limitations was re troac tively extended by statute : The State’s arg uments muddy the issue. By the time the rape char g e was filed ag ainst Gar cia in la te J anuar

y 2004, the statute of limit ations alre ady had been extended by the leg islature to 1 y ear af t er h i s Aug ust 2003 DNA testing- to Aug ust 2004. Acc ording ly , the proper question is not whether he was being prosec uted outside of the statute of limit ations. Under the amende d sta t u t e, h e clearly fell withi n the limitati ons period; therefore, the statute of limitati ons defense was not available to him , and case law conce rning waiver of a limit ations period as an aff irmative defe nse is inapplicable. R at h er, the proper question is whether the amende d statute leng thening the limit ations period was applied contra ry to a constitutional provision, i.e., the Ex Post Facto Clause, and we have he ld that it was. 5 4
As the above passag e shows, the defe ndant in the Kansa s case had no statute of limit ations defe nse beca use t he new

statute extended the per iod of limit ations. The Kansas court found t hat very fac t to be the re ason the prose cution’s waive r ar g uments were unavailing

.

B. Th e Legislature D id Not Com m it an Ex Post Facto Violation
The 1997 a mendments to the limit ations statute contained the following saving s provision that preve nted the statute fr om opera ting c ontrary to the dictates of Stogner :

169 P.2d 1069 (Kan. 2007). 5 2 Court’s op. at 17. 5 3 Id. at 1076 (e mphasis added)

. 5 4P HILL IP S DISS ENT — 11

The chang e in the law made by this Act d oes not apply to an offe nse if the prosec ution of t he off

en s e beca me barred by limit ation befor e the eff ective date of this Act. The prosec ution of that offe nse rema ins barr ed as though this Act had not taken e ffe ct. 5 5
So the saving s provision preve nted the 1997 amendments from apply ing to appellant’ s sex offe nses that beca me barr ed in 1993. T he par ties and the trial court wer e simply mistaken in be lieving that the 1997 statute applied. The leg islature did not pass an ex post facto law.
This case is no differe nt than a case in w hich the statute of limitations has sim ply not been complied with. I t is no differ ent from a case in which the statute of limit ations is five y ear s, and has alway s been five y ear s, but the char g ing instrument was not returne d until afte r seven y ear s (with no tolling circ umstances prese nt). Under the applicable statutes, appellant’ s case was time-barr ed, and
all of the trial participa

nts wer e simply mistaken in believing otherwise. I t does not matter how the

statute of limit ations was later amende d, if those later amendments do not apply to appellant. Those inapplicable amendments cannot mag ically conver t a plain vanilla statute-of- limit ations claim into

an ex post facto violation.
C. Lim itations Defense Was F orfeited The que stion now is whether a ppellant can raise his pla in-vanilla limit ations claim for the
first time on appea l. I n Proctor v. State , we held that statute of lim i t at i o n s wa s a defe nse that a d ef en d an t fo rf

ei t ed if he failed to raise it befor e or at trial. The Court contends that Proctor is 5 6 distinguishable and g overns a statute-of- limit ations defe nse only if it involves fac ts rathe r than “pure

Acts 1997, 75 L eg ., Ch. 740, § 3. The 2007 amendments that ag ain chang ed the period 5 5 t h of limit ations for sex offe nses contained an almost identically worde d saving s provision. See Acts 2007, 80 L eg ., ch. 593, § 4.01(c ).

t h
967 S.W .2d at 844. 5 6P HILL IP S DISS ENT — 12

law.” The Court’s contention is at odds with the rea sons g iven in Proctor for holding the defe nse 5 7

to be forf eitable. Severa l rea sons we g ave for trea ting a statute-of- limit ations defe nse as forf eitable

wer e: (1) “limitations has littl e to do with the truth-finding function of the criminal justice sy stem,” (2) “a defe ndant might make a calc ulated decision to waive the defe nse when the statute is about to

run in order to g ain time for plea bargai ning,” and (3) “a defe ndant might want to fore g o the
limit ations defe nse in order to vindicate his g ood name in the fac e of a serious and publicly known
char g e.” All of these rea sons apply equally t o situations in which an offe nse is barr ed by

5 8
limit ations as a matter

of law. Rely ing upon case s that say a (non-r epar able) limit ations bar may be raised in pretria l habea s
proce eding s, the Court claims that this somehow means that a (non-r epar able) limit ations bar may

5 9
be raised for the first time on appea l. But there is no neces s ar y connec tion betwee n the two

conce pts. I ndeed, the fac ial constitutionalit y of a statute that define s the offe nse may be challeng ed
in a pretria l habea s proce eding , but such a claim cannot be raised for the first time on appea l. The 6 0 6 1
Court claims that Tita v. State distinguished betwee n fac tual proof under Proctor and an irrepa rable

Court’s op. at 16. 5 7 Id. I add to this list the possibili ty that fore g oing a limit ations defe nse could be part of a 5 8 p l ea agre ement involving multipl e char g es. For example, a defe ndant acc used of capital murder might fore g o limit ations defe nses for lesser offe nses in exchang e for the State’s waiver of the death penalty

. Ex parte Smith , 178 S.W .3d 797, 801-0 2 (T ex
. Crim. App. 2005); Ex parte Tamez , 38

5 9 S.W .3d 159, 160 (Tex. Crim. App. 2001).
Ex parte Ellis , 309 S.W .3d 71, 79 (Tex. Crim. App. 2010) (“Pre trial habea s can be used 6 0 to bring a fa cial cha lleng e to the constitutionality of the statute that de fines the of fense .”).
Karenev v . Stat e, 281 S.W.3d 428 (Tex. C rim. App. 2009). 6 1P HILL IP S DISS ENT — 13

bar, but Proctor was distinguished on the basis that the Code of Criminal Procedur e contains a require ment that an indictment ref lect on its fac e that the prosec ution is not barr ed by limit ations. 6 2
Unfortuna tely for appellant, the Code of Criminal Procedur e also provides that a defe ndant forf eits

err or if he f

ails to object befor e trial to a de fec t of form or substanc e in the indictment. 6 3
T h e C o urt cites Ex parte Smith for the proposition that a li mitations bar may be raised “in

a pretria l motion to quash or dismiss , a p re t ri al writ, at trial, on direc t appea l, or in a collater al
proce eding .” Contrary to the Court’s contention, Smith did not say that limit ations may be raised

6 4
for the first time on appea l, and the “collate ral proce eding ” to which Smith appar ently ref err ed was 6 5

a p re trial habea s reque st for bail. And Smith did not nece ssarily approve the holding in the bail 6 6

case
. The Court simply stated that this past dec i s ion found the pleading to be “so fundame ntally
defe ctive that the trial court does not have jurisdiction and habea s relief should be g rante d,” but the Court then supplied, in a footnote, a “ but see” cite to Proctor

. Moreove r, the ba il case, Ex parte 6 7
Dicke rson, was a 1977 decision that preda ted both Proctor and the l egi slative amendments that imposed the pretr ial objection re quirement for challeng ing a

defe ct in the indictment.

Tita v. State , 267 S.W .3d 33, 38 (Tex. Crim. App. 2008) (citing T E X
. C O D E C R I M
. P R O C
. 6 2 art. 21.02(6) (“The time mentioned must be some date anter ior to the prese ntment of the indictment, and not so remote tha t the prosec ution of the offe nse is barr ed by limit ation.”))

. T E X
. C O D E C R I M
. P R O C . art. 1.14(b) ; Studer v. State , 799 S.W .2d 263 (Tex. Crim. App. 6 3 1990). Court’s op. at 16-17 (c iting Smith , 178 S.W .3d at 801-02).

6 4 Smith , 178 S.W .3d at passim

. 6 5
See id. at 802 (citing Ex parte Dicke rson , 549 S.W .2d 202 (Tex. Crim. App. 1977)); See 6 6 Dicke rson , supra .

Smith , 178 S.W .3d at 802 & n.19. 6 7P HILL IP S DISS ENT — 14

Fur ther, in Posey v. State , we held that the failure to reque st a defe nse means that the defe nse is not “law applicable to the case ” and thus cannot be a basis for a jury -cha rg e complaint. I believe

6 8

a substantive defe nse could be raised as a sufficie ncy -of- the evidenc e point without a prior objection
if the evidenc e proves the defe nse as a matter of law. But statute of limit ations is not a substantive 6 9
defe nse. I t is contained in the Code of Criminal Procedure, not the Penal Code, and it does not
neg ate criminal liability

at the time the conduct was committed. I nstead, statute of limit ations is a
proce dural defe nse, an “ac t of g rac e” by the leg islature. Thus, it can be forf eited in its entirety , and 7 0
it was forf

eited in this case. 7 1
I respe ctfully

dissent. Filed: June 15, 2011 Publis h

966 S.W .2d 57 (Tex. Crim. App. 1998).

6 8
See W

right v. State , 981 S.W .2d 197, 203-04 (Tex. Crim. Ap p
. 1998) (Ke ller, J ., 6 9 dissenting)

.

Proctor , 967 S.W .2d at 843. 7 0 That does not mean, howeve r, that appellant is without any possible reme dy

. I f appellant 7 1 did not knowing ly forg o the defe nse and his attorney had no valid strateg y for failing to raise it, then appellant may

well have a valid cla im of ineffe ctive assistanc e of c ounsel.