      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00273-CR



                              Leobardo Puente Martinez, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-10-302528, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found appellant Leobardo Puente Martinez guilty of sexual assault. See Tex.

Penal Code § 22.011(a)(1)(A). The jury assessed punishment at twenty years’ imprisonment. On

appeal, Martinez asserts that (1) his prosecution for this offense was barred by the statute of

limitations and (2) the trial court erred in failing to instruct the jury on the applicable statute of

limitations. We affirm the judgment of the trial court.


                                         BACKGROUND

                On October 8, 1999, “Jessica Lopez,”1 the complaining witness in this case, was at

a dance club in Austin when she met a man whom she later identified as Martinez. Lopez had seen

Martinez in the club previously, and Martinez told Lopez that his name was Antonio. Martinez




       1
           We refer to the complaining witness by a fictitious name to protect her identity.
and Lopez shared a drink and had their picture taken by a photographer while they were at the

club. Martinez told Lopez that he needed to go back to his apartment to get his wallet. Lopez

accompanied Martinez back to his apartment, at which point the alleged sexual assault began.

               Lopez testified that Martinez lured her into the bedroom and demanded that she

perform sexual intercourse. When Lopez refused, Martinez began hitting and biting Lopez on her

face and body. Martinez penetrated Lopez’s sexual organ with his sexual organ, and when Lopez

screamed for him to stop, Martinez threatened to kill her if she did not comply. After the assault was

complete, Martinez fell asleep and Lopez carefully got dressed and sneaked out through a window.

Lopez went home to treat the open wounds on her face and then called 911 to report the assault.

               Lopez gave responding officers the picture of her and Martinez from the club; an

approximate address for his apartment; and a phone number for his apartment, explaining that she

had previously dated Martinez’s roommate. Lopez agreed to submit to a sexual assault exam, and

DNA and other forensic evidence was recovered from her body and clothing that same day. Lopez

met with Detective Gary Zumwalt from the Austin Police Department’s Sex Crimes Unit a few days

after the assault, but Detective Zumwalt did not obtain a formal statement from Lopez about the

assault at that time. Six months later, the results from the sexual assault exam revealed DNA of an

unknown male that did not match that of any suspect in the nationwide criminal database. Detective

Zumwalt’s investigation of the assault was suspended and the unidentified DNA sample was entered

into the criminal database in the hope that a future match could identify the assailant.

               In late 2010, Detective Stephen Andreini learned that the DNA sample recovered

from Lopez’s alleged assault matched that of a sample recently recovered from Martinez. Detective

Andreini contacted Lopez, who gave a written statement about the sexual assault. Martinez was

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indicted on February 25, 2011 for the alleged sexual assault. Following a three day trial, the jury

found Martinez guilty of the sexual assault and assessed punishment at twenty years’ imprisonment.

This appeal followed.


                                             DISCUSSION

                Martinez raises two issues on appeal. First, he asserts that his prosecution was barred

by the ten-year statute of limitations. See Tex. Code Crim. Proc. art. 12.01(2)(E). Second, Martinez

claims that the trial court erred in failing to instruct the jury on the applicable statute of limitations.

We address each of these issues separately.


Statute of limitations

                In his first issue on appeal, Martinez claims that his prosecution was time-barred by

the ten-year statute of limitations. Generally, the statute of limitations for sexual assault of an adult

is ten years from “the date of the commission of the offense.” See id.2 However, there is no statute




        2
            In October 1999—when this offense allegedly occurred—the applicable statute of
limitations for sexual assault was five years. See Act of Apr. 23, 1999, 76th Leg., R.S., ch. 39, § 1,
art. 12.01(4)(C), 1999 Tex. Gen. Laws 83, 84 (amended 2001) (current version at Tex. Code
Crim. Proc. art. 12.01(2)(E)). However, in 2001, the Legislature amended the applicable statute of
limitations for sexual assault to the term currently reflected in article 12 of the Code of Criminal
Procedure. See Act of Apr. 20, 2001, 77th Leg., R.S., ch. 12, § 1, art. 12.01(1)(B), (2)(E), 2001 Tex.
Gen. Laws 20 (amended 2003) (current version at Tex. Code Crim. Proc. art 12.01(1)(C), (2)(E)).
Martinez concedes that the 2001 amendment effectively extended the statute of limitations for this
offense because at the time of the amendment’s adoption the original five-year statute of limitations
had not expired. See Phillips v. State, 362 S.W.3d 606, 612–13 (Tex. Crim. App. 2011) (explaining
that if statute of limitations is extended after offense committed, prosecution is constitutional only
if original statute of limitations “had not already run before the law was changed”). For convenience,
we cite to the current version of the statute because there have been no intervening amendments
since 2001 that are material to our disposition of this appeal.

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of limitations for sexual assault “if during the investigation of the offense biological matter is

collected and subjected to forensic DNA testing and the testing results show that the matter does

not match the victim or any other person whose identity is readily ascertained.” Id. art. 12.01(1)(C).

               Martinez was indicted in this case more than ten years after the alleged sexual

assault occurred. See id. arts. 12.01(2)(E); 12.05(b)–(c) (tolling statute of limitations during

pendency of indictment). Martinez asserts that in 1999, Lopez provided Detective Zumwalt with

so much information about her assailant—including a photograph of Martinez, his telephone

number, and his approximate address—that Detective Zumwalt could have readily ascertained

Martinez’s identity at that time. Therefore, according to Martinez, article 12.01(1)(C) of the Code

of Criminal Procedure is inapplicable in this case because his identity could have been readily

ascertained at or near the time the DNA sample was collected. See id. art. 12.01(1)(C) (removing

statute of limitations for sexual assault if unidentified DNA collected during investigation). Thus,

Martinez claims that his prosecution was barred by the default ten-year statute of limitations for

sexual assault. See id. art. 12.01(2)(E).

               Martinez raises the statute of limitations issue for the first time on appeal. “[T]he

statute of limitations is a procedural rule [] in the nature of a defense” that operates 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). For this reason, the

court of criminal appeals has concluded that the statute-of-limitations defense “is forfeited if not

asserted at or before the guilt/innocence stage of trial.” Id. The court explained that this defense

may be preserved by either (1) filing a pre-trial motion to dismiss under article 27.08(2) of the Code



                                                  4
of Criminal Procedure or (2) requesting a jury instruction on the statute of limitations. Id. (noting

that State has burden to prove beyond reasonable doubt that statute of limitations has not expired).

                Recently, the court of criminal appeals carved out an exception to the general rule that

a statute-of-limitations defense must be raised at or before trial. See Phillips v. State, 362 S.W.3d

606, 616–17 (Tex. Crim. App. 2011). As the court explained, when the legislature extends the statute

of limitations after the limitations period has expired for a given offense, prosecution under the new

statute of limitations for that offense would constitute an application of unconstitutional ex post facto

law. See id. at 616 (citing Stogner v. California, 539 U.S. 607, 616–19 (2003)); see also U.S. Const.

art. I, § 9 cl. 3 (prohibiting passage of ex post facto law); Tex. Const. art. I, § 16 (same). Because

there is a “categorical prohibition” against ex post facto laws, a defendant does not waive his

right to challenge his conviction on ex-post-facto grounds by failing to object at trial. See Phillips,

362 S.W.3d at 616–17 (citing Ieppert v. State, 908 S.W.2d 217, 220 (Tex. Crim. App. 1995)).

Therefore, the court held that a defendant may raise a statute-of-limitations challenge on ex-post-

facto grounds for the first time on appeal. Id.

                In this case, the statute of limitations for sexual assault was extended before the

original five-year statute of limitations for this offense had expired. See supra n.2. Therefore, this

case does not present an ex-post-facto violation. See Phillips, 362 S.W.3d at 612. Nevertheless,

Martinez asserts Phillips established that a defendant may raise any statute-of-limitations

challenge—regardless of whether or not it is founded on ex-post-facto grounds—as long as the

record establishes that the limitations period had expired as a matter of law. See id. at 617–18

(noting that if “indictment shows on its face that prosecution is absolutely barred by the statute of

limitations,” then statute-of-limitations defense is question of “pure law,” not fact).

                                                   5
                Even assuming, without deciding, that Phillips indicates a defendant may raise a

statute-of-limitations defense for the first time on appeal if the defense involves a “pure” question

of law, Martinez’s defense in this case still fails. The statute-of-limitations defense that Martinez

asserts necessarily involves a factual issue—i.e., whether his identity could have readily been

ascertained in 1999 such that article 12.01(1)(C) does not apply. This is a statute-of-limitations defense

that is “based on facts,” and therefore is exactly the type of defense that Phillips cautioned must be

raised at or before trial. See id. at 618 (noting that statute-of-limitations defense that involves factual

dispute such as tolling must be preserved because defect may be reparable). Because Martinez

failed to raise his statute-of-limitations defense either by pre-trial motion or by requesting a jury

instruction, he has not preserved this issue for appeal. See id. Therefore, we overrule Martinez’s

first appellate issue.


Jury instruction

                In his second issue on appeal, Martinez asserts that the trial court erred in failing to

instruct the jury on the statute-of-limitations issue. However, as Martinez concedes, his trial counsel

never requested an instruction on the statute of limitations. Martinez nevertheless contends that the

trial court’s failure to include a statute-of-limitations instruction on its own volition was egregiously

harmful error that denied him a fair and impartial trial. See Almanza v. State,. 686 S.W.2d 726, 731

(Tex. Crim. App. 1994) (explaining that juror-charge error may, in rare circumstances, support reversal

even if error not raised in requested jury instruction).

                The court of criminal appeals has held that it is the defendant’s duty to request a jury

instruction on the statute of limitations in order to preserve a complaint about the jury charge for

                                                    6
appeal. See Tita v. State, 267 S.W.3d 33, 39 (Tex. Crim. App. 2008). Therefore, we conclude that

Martinez was not egregiously harmed by the trial court’s failure to give a statute-of-limitations

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 designated for publication) (concluding no Almanza-

type harm from failure to instruct jury on statute-of-limitations defense). We overrule Martinez’s

second appellate issue.


                                        CONCLUSION

               Having overruled Martinez’s two appellate issues, we affirm the trial court’s

judgment of conviction.



                                             __________________________________________

                                             Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: March 20, 2014

Do Not Publish




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