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                                                NO.
12-05-00350-CR
 
IN THE COURT OF APPEALS 
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
DAN ALLEN COMPTON,   §                      APPEAL FROM THE 114TH
APPELLANT
 
V.        §                      JUDICIAL DISTRICT COURT OF
 
THE STATE OF TEXAS,
APPELLEE   §                      SMITH
COUNTY, TEXAS
                                                                                                                                        
                   
OPINION
            A jury
convicted Appellant Dan Allen Compton of the offense of aggravated perjury, and
the trial judge assessed his sentence at imprisonment for ten years and a
$5,000 fine.  In three issues, Appellant
complains on appeal that his counsel was ineffective and that the trial court
erred in failing to grant Appellant’s motion for new trial.  We reverse and remand.
 
Background




            Both
Appellant and his former wife appeared on August 29, 2002 at a hearing for a
child protective order sought by his former wife.  During the hearing, Appellant’s wife
testified that Appellant had threatened to kill her if she ever left him or
cheated on him, that he whipped his young son with a belt, that although she
suffered from Lupus, he had poured out all her medicine, and that he had taken
her clothes from her because he considered them immodest.  Appellant, in his testimony, categorically
denied doing any of these things.  Faced
with totally conflicting testimony, the trial judge asked the parties if they
would submit to a polygraph examination and if they did, he would be guided by
the results.  Both parties assented.  Appellant went to the polygraph operator on
September 5, 2002.  Without taking a
polygraph examination, he admitted to the examiner, Eric Holden, that his
in-court answers to these questions had been untruthful, and that, in fact, he
had done all the acts in question. 
Therefore, Holden determined that it was unnecessary to examine
Appellant on the polygraph and reported Appellant’s admissions to the judge
hearing the application for protective order. 
The last hearing on the child protective order occurred
November 12, 2002.
            Appellant
was first indicted in March 2004, the indictment containing one charge of
aggravated perjury alleged to have occurred on August 29, 2002.  This indictment was dismissed on September 8,
2004.  Appellant was reindicted on May
19, 2005.  The new indictment alleged the
original charge but also included three new allegations of aggravated perjury
occurring on the same date, August 29, 2002, and in the same proceeding as the
offense charged in the first indictment.
            Five hundred
fifty-three days passed between the date of the offense alleged and Appellant’s
indictment on the first charge.  The
first indictment was pending from March 4, 2004 through September 8, 2004, or
188 days.  Appellant’s new indictment
alleging the original charge and three new charges of aggravated perjury was
not returned until May 19, 2005, 253 days after the first indictment was
dismissed.  Excluding the time pending
under the first indictment, 806 days elapsed between the date of the offense
and the return of the second indictment or seventy-five days after the
expiration of the two year limitation period. 

            The second
indictment did not allege the pendency of the previous charging instrument or
any other facts that would have tolled the running of limitations.  Appellant’s attorney did not move to dismiss
or quash the indictment prior to the day of trial nor did he raise the
limitation issue at the guilt-innocence stage of the proceedings.
            At the
hearing on Appellant’s motion for new trial, Appellant’s trial counsel
testified that he had assumed the three year limitation period for all other
felonies applied to aggravated perjury and that he was not aware until after
sentencing that an indictment for aggravated perjury must be presented within
two years and not afterward.
 
Ineffective Assistance
of Counsel
            In his first
and second issues, Appellant complains that his trial attorney was
ineffective.  
Standard of Review
            The standard
for testing claims of ineffective assistance of counsel is set out in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and
adopted for Texas constitutional claims in Hernandez v. State,
726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). 
To prevail on his claim of ineffective assistance, an appellant must
show that his attorney’s representation fell below the standard of prevailing
professional norms, and that there is a reasonable probability that, but for
the attorney’s deficiency, the result of the trial would have been
different.  Tong v. State,
25 S.W.3d 707, 712 (Tex. Crim. App. 2000).
            Our review
of counsel’s representation is highly deferential; we indulge a strong
presumption that counsel’s conduct falls within a wide range of reasonable
representation.  Strickland,
466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712.  This court will not second guess through
hindsight the strategy of counsel at trial, nor will the fact that another
attorney might have pursued a different course support a finding of
ineffectiveness.  Blott v. State,
588 S.W.2d 588, 592 (Tex. Crim. App. 1979). 
That another attorney, including appellant’s counsel on appeal, might
have pursued a different course of action does not necessarily indicate
ineffective assistance.  Harner v.
State, 997 S.W.2d 695, 704 (Tex. App.–Texarkana 1999, no pet.).  Any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.  Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
            In order to
render reasonably effective assistance, an attorney must have firm command of
the facts of the case and the governing law. 
Ex parte Welborn, 785 S.W.2d 391, 394 (Tex. Crim. App.
1990); Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App.
1983).  “It may not be argued that a
given course of conduct was within the realm of trial strategy unless and until
the trial attorney has conducted the necessary legal and factual investigation
which would enable him to make an informed rational decision.”  Wellborn, 785 S.W.2d at 393
(citing Ex parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim. App.
1980))
Applicable Law
            Perjury is a
misdemeanor, Tex. Pen. Code Ann. §
37.02 (Vernon 2003), with a limitation period of two years.  Tex.
Code Crim. Proc. Ann. art. 12.02 (Vernon 2005).    A person commits aggravated perjury when he
makes a material false statement during or in connection with an official
proceeding.  Tex. Pen. Code Ann. § 37.03 (Vernon 2003).  An indictment for the offense of aggravated
perjury must also be presented within two years of the date of the offense.  Ex parte Tamez, 4 S.W.3d 854,
856 (Tex. App.–Houston [1st Dist.] 1999), aff’d, 38 S.W.3d 159 (Tex.
Crim. App. 2001);  State v. Coleman,
962 S.W.2d 267, 268 (Tex. App.–Houston [1st Dist.] 1998, pet. ref’d); Ex
parte Matthews, 933 S.W.2d 134, 136 (Tex. Crim. App. 1996), overruled
on other grounds, Proctor v. State, 967 S.W.2d 840, 844 (Tex.
Crim. App. 1998); see also Tex.
Code Crim. Proc. Ann. art. 12.03 (Vernon 2005) (unless excepted, any
offense bearing the title “aggravated” carries same limitation period as
primary crime).
            The time
during the pendency of an indictment, information, or complaint shall not be
computed in the period of limitations.  Tex. Code Crim. Proc. Ann. art.
12.05(b) (Vernon 2005).  If one charging
instrument has been superseded by another, the latter, if filed after the
limitation period, must allege the pendency of the superseded charging
instrument.  Cooper v. State,
527 S.W.2d 563, 565 (Tex. Crim. App. 1975), overruled on other grounds by Proctor,
967 S.W.2d at  844.
            Texas law
permits the State to plead that the offense was committed “on or about” a
specific date, but the State still must plead a date within the applicable
limitations period.  40 George E. Dix & Robert O. Dawson,
Texas Practice: Criminal Practice and Procedure § 3.56 (2d ed.
2001).  Only the face of the pleading is
considered in determining whether relief is warranted when a statute of
limitations claim is raised.  Tamez,
38 S.W.3d at 161.
            A crime is
complete for limitation purposes when each of the elements of the crime has
occurred.  Barnes v. State,
824 S.W.2d 560, 562 (Tex. Crim. App. 1991), overruled on other grounds, Proctor,
967 S.W.2d at 844.  The Barnes court
held that, although it was within the authority of the legislature to create an
offense that is continuing in nature, an offense should not be considered a
continuing one unless the language of the statute compels that conclusion or
the nature of the crime is such that the legislature must have intended it be
treated as continuing.  Barnes,
824 S.W.2d at 562.  In Barnes,
the court adopted Justice Black’s reasoning in Toussie v. United States,
397 U.S. 112, 115, 90 S. Ct. 858, 860, 25 L. Ed. 2d 156 (1970).
 
[T]he doctrine of continuing offenses
should be applied in only limited circumstances. . . . such a result should not
be reached unless the explicit language of the substantive criminal statute
compels such a conclusion or the nature of the crime is such that congress must
assuredly have intended that it be treated as a continuing one.
 
Barnes, 824 S.W.2d at 562.
            Appellant
urges that the indictment showed on its face that the offense was committed
outside the two year limitation period applicable to aggravated perjury.  The State argues that the last hearing on the
application for a child protective order occurred on November 12, 2002 and that
Appellant testified at that hearing. 
Therefore, the State contends, the limitation period did not commence
until that date.  The indictment,
however, alleges four instances in which Appellant gave perjured testimony on
August 29, 2002.  It alleges that he
admitted to Eric Holden on September 5, 2002 that he had not told the truth
regarding the four questions upon which the indictment is based.  Aggravated perjury is not a continuing
offense.  There is no explicit language
in the Penal Code provision denouncing aggravated perjury that compels the
conclusion that the offense is a continuing one, nor is the offense of such a
nature that the legislature must have intended that it be treated as
continuing.  See Barnes,
824 S.W.2d at 562.  In determining the
date of the commencement of the limitation period, we must consider only the
face of indictment, Tamez, 38 S.W.3d at 160, and the indictment
alleges the offense occurred on August 29, 2002.
            An objection
to an indictment that shows on its face that the offense was committed outside
the limitation period must be made prior to the day of trial in order to
preserve the complaint for appellate review. 
Tex. Code Crim. Proc. Ann.
art. 1.14(b) (Vernon 2005); State v. Turner, 898 S. W.2d 303, 308
(Tex. Crim. App. 1995), overruled on other grounds by Proctor,
967 S.W.2d at 844.
Discussion
             We recognize that the Texas Court of Criminal
Appeals has held that, under normal circumstances, the record on direct appeal
will not be sufficient to show that counsel’s representation was so deficient
and so lacking in tactical or strategic decision making as to overcome the
presumption that counsel’s conduct was reasonable and professional.  Mallett v. State, 65 S.W.3d 59,
63 (Tex. Crim. App. 2001).  In addressing
this reality, the court has explained that appellate courts can rarely decide
the issue of ineffective assistance of counsel because the record almost never
speaks to the strategic reasons trial counsel may have considered.    Aldrich v. State, 104 S.W. 3d
890, 896 (Tex. Crim. App. 2003).  This is
because the trial record was not developed for the purpose of preserving or
litigating this claim.  See, e.g., Freeman
v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003).  The proper procedure for raising this claim
is therefore almost always habeas corpus. 
Aldrich, 104 S.W.3d at 896.  But that is not to say that a claim of
ineffectiveness of counsel may never be raised on direct appeal.  “There may be cases in which counsel’s
ineffectiveness is so apparent from the record that appellate counsel will
consider it advisable to raise the issue on direct appeal.”  Massaro v. United States, 538
U.S. 500, 508, 123 S.Ct. 1690, 1696, 155 L.Ed.2d 714 (2003).  The court went further, adding “[t]here may
be instances, too, when obvious deficiencies in representation will be
addressed by an appellate court sua sponte.”1  Even a single error can render counsel’s
representation ineffective if sufficiently egregious and harmful to the
defendant.  Murray v. Carrier,
477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986).
            The record
in the instant case discloses an error of that magnitude: counsel’s failure to
timely move to quash an indictment which showed on its face that the limitation
period for this offense had expired.  A
motion to quash filed anytime during the two months preceding the day of trial
would have been undeniably meritorious, and its grant would have barred
Appellant’s further prosecution.  We need
not attempt to imagine a tactic or strategy that might explain such an
egregious omission.  Appellant had twice
asked counsel to move for dismissal on the ground of limitation.  At the hearing on Appellant’s motion for new
trial, Appellant’s counsel candidly conceded that he believed the three year
statute for third degree felonies applied, and that he had so assured Appellant
on the two occasions. He testified that he did not discover that the two year
limitation period applied until after sentencing.
            Counsel’s
error is understandable though not justifiable. 
Aggravated perjury trials and appeals are a relative rarity, judging
from the small number of annotations to the pertinent Penal Code
provision.  Aggravated perjury is one of
perhaps only two offenses whose limitation period is not governed by the three
year residuary felony limitation period found in Texas Code of Criminal
Procedure, article12.03(d).  40 Dix & Dawson, supra §
3.29.  A modest amount of research,
however, would have disclosed an uncontradicted line of recent cases holding
that aggravated perjury has a two year limitation period.  Tamez, 4 S.W.3d at 856; Tamez,
38 S.W.3d at 161; Coleman, 962 S.W.2d at 268; Matthews,
933 S.W.2d at 136;  Ex parte Zain,
940 S.W.2d 253, 254 (Tex. App.–San Antonio 1997, no writ).
            In Skero
v. State, 866 S.W.2d 336, 337-38 (Tex. App.–Houston [14th Dist.] 1993,
pet. ref’d), Appellant contended that his trial counsel was ineffective,
because he failed to raise the limitation issue before the day of trial as is
necessary to preserve the complaint for appeal. 
Id.  The court of
appeals held that counsel was not ineffective for this reason, because there
was case law at the time of trial that approved raising the issue after the
start of trial.  Counsel also had an
incentive not to object before trial, because, if he had objected, the State
could have amended the indictment to include language tolling the running of
the statute.  Id. at
338-39.  By the time of trial in the
instant case, the law was clear that the State must bring an indictment for
aggravated perjury within two years.  And
in this case, the inclusion of tolling language would not have brought the
charge within the limitations period.
            In
undertaking the defense of an accused, counsel has a duty to conduct a
reasonably substantial and “independent examination of the facts,
circumstances, pleadings and laws involved.” 
Strickland, 466 U.S. at 680, 104 S. Ct. at 2061.  Counsel has a duty to bring to bear such
skill and knowledge as will render the trial a reliable adversarial testing
process.  Id., 466 U.S. at
690, 104 S.Ct. at 2066.  Without a firm
command of the law governing the case, a lawyer cannot render effective
assistance to the defendant.  See Lilly,
656 S.W.2d at 493.  In our view, the law
governing the case includes the applicable statute of limitation.  The failure to learn the appropriate
limitation period and to timely urge its expiration is performance falling well
below prevailing professional norms.
            When counsel’s
failure to timely urge the expiration of the limitation period is considered
with the totality of his representation, counsel’s performance at trial does
nothing to redeem his pretrial error. 
The trial was brief, and Appellant did not testify nor did counsel call
any witnesses during either stage of the trial. 
Counsel’s cross examination of the State’s four witnesses ranged from
ineffectual2 to
absolutely harmful to the defense.  In
cross examining the State’s key witness, Eric Holden, counsel intentionally
elicited testimony that Holden was a polygraph operator and that Appellant had
not taken a polygraph examination.  These
facts, until then, had been carefully kept from the jury by the trial
judge.  Once the door was opened, the
State was allowed to show that Appellant had made his admissions when
confronted with a polygraph.  The State
elicited additional testimony that Appellant admitted he had not only
threatened once to kill his wife, but that he had threatened to kill her “not
more than ten times,” that he had threatened to kill her if she cheated on him,
“and [he] meant it.”  He not only
admitted that he had beaten his son with a belt, but that he had beaten the
eight year old with a belt approximately thirty times.  Other damaging testimony in the same vein
followed during redirect examination.  By
the time for closing argument, there was apparently little to be said for
Appellant, and his counsel took less than five minutes to say it.
            We conclude
that the performance of Appellant’s counsel fell below an objective standard of
reasonableness.  Counsel’s error was so
serious that he was not functioning as the counsel guaranteed by the Sixth
Amendment.  See Strickland,
466 U.S. at 688, 104 S. Ct. at 2064-65.
            The second
part of the Strickland test requires that Appellant “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”  Id. 
In this case, prejudice to Appellant is undeniable, and more
than adequate to satisfy the second part of the Strickland test.  As a result of his counsel’s failure to move
to quash the indictment, Appellant was subjected to a trial, conviction, and,
although he was technically eligible for probation, a sentence of imprisonment
for the maximum term allowed.  
            Appellant
has satisfied both requirements of Strickland.  Therefore, his first and second issues are
sustained.  Having sustained Appellant’s
first and second issues, we need not address his third issue.  See Tex.
R. App. P. 47.1. 
Disposition
             The judgment of the trial court is reversed
and the case remanded to the trial court.
 
                                                                                                    BILL BASS    
                                                                                                            Justice
 
Opinion delivered August 31,
2006.
Panel consisted of Worthen,
C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals,
Tyler, sitting by
assignment.
 
(PUBLISH)




                1  In Massaro, the court held that
failure to raise an ineffective assistance of counsel claim on direct appeal
does not bar the claim from being raised later in a proceeding under 28 U.S.C. §
2255.


                2
The State raised eighteen objections during counsel’s cross examination of the
State’s four witnesses, chiefly on relevancy grounds.  The trial court sustained sixteen.


