

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
Darrel
Demont Farrar
Appellant
Vs.      
            No. 11-01-00231-CR --  Appeal from Dallas County
State of Texas
Appellee
 
Appellant
entered an open plea of guilty to the offense of unlawful possession of
cocaine.  The trial court accepted his
plea of guilty and assessed his punishment at confinement in the Institutional
Division of the Texas Department of Criminal Justice for a term of 15
years.  Prior to entering his guilty
plea, appellant filed a motion to quash the indictment on the basis that the
proceedings were barred by the applicable statute of limitations.  Appellant complains of the trial court=s denial of the motion to quash the
indictment in his sole issue on appeal. 
We affirm.
The
underlying proceedings in this appeal are unusual.  The indictment alleged that appellant committed the offense in
question on or about August 8, 1996. 
The indictment was not returned by the grand jury until February of
2001.  The parties acknowledge that the
offense in question is subject to a three-year statute of limitations under
TEX. CODE CRIM. PRO. ANN. art. 12.01(5) (Vernon Supp. 2003).  The State relies on TEX. CODE CRIM. PRO.
ANN. art. 12.05(a) (Vernon 1977) to argue that the statute of limitations was
tolled by appellant=s
absence from the State during the applicable three-year period.   However, the indictment did not allege any
facts invoking the tolling provision of Article 12.05(a).    The indictment was, therefore,
limitations-barred on its face.




Appellant
filed a motion to quash the indictment. 
The trial court conducted a brief hearing on appellant=s motion to quash.  The hearing commenced with the trial court taking judicial notice
of the date of the offense alleged in the indictment and the date the
indictment was returned.  Despite the
indictment=s obvious pleading defect, the trial court
did not immediately grant appellant=s facial challenge of the indictment. 
Instead, the trial court heard testimony concerning appellant=s whereabouts for the three-year period
following the date of the offense. 
Appellant testified on direct examination that he resided in Texas from
August of 1996 until October of 1999 when he moved out of state.   On cross-examination, appellant admitted
that he was arrested in another state in 1998. 
He further admitted to using an alias at the time of his arrest.  He testified on redirect that the 1998 arrest
occurred during a one-week trip that he made out of state.  No other evidence was presented at the
hearing other than appellant=s testimony outlined above.  The
trial court denied appellant=s motion to quash the indictment based on its factual determination
that appellant was absent from the state during the limitations period.   
Appellant
subsequently entered an open plea of guilty to the offense.  Prior to entering a finding of appellant=s guilt, the trial court heard testimony
directed toward punishment.  This
testimony included evidence of appellant=s whereabouts during the applicable three-year period.  Appellant testified that he agreed to be a
police informant immediately after his arrest. 
He received a death threat in 1996 with respect to a case in which he
was supposed to testify.  Appellant
testified  that he Amade scarce from that point on.@  He
admitted on cross-examination that he left the state after being arrested for
the offense at issue in this proceeding.[1]  
The Court
of Criminal Appeals recently adopted the following  procedural framework for the presentation of a statute of
limitations defense in Proctor v. State, 967 S.W.2d 840, 844 (Tex.Cr.App.1998):
Before trial, a defendant may assert the
statute of limitations defense by filing a motion to dismiss under Article
27.08(2) of the Texas Code of Criminal Procedure.  At trial, the defendant may assert the defense by requesting a
jury instruction on limitations if there is some evidence before the jury, from
any source, that the prosecution is limitations-barred. If there is some such
evidence and the defendant requests a jury instruction on the limitations
defense, then the State must prove beyond a reasonable doubt that the
prosecution is not limitations-barred. 
Finally, the defendant may, either before trial or at trial, waive the
statute of limitations defense. 
(Citation omitted)
 




This
appeal concerns a motion to quash an indictment filed under TEX. CODE CRIM.
PRO. ANN. art. 27.08(2) (Vernon 1989) as recognized by Proctor.   This provision permits a Asubstance@ exception to an indictment or information when it appears from the
face of the instrument that a prosecution for the offense is barred by
time.  Article 27.08(2) permits the
accused to attack the State=s defective indictment or information.   The remedy for this pleading error is either the dismissal or
amendment of the indictment or information. 
See TEX. CODE CRIM. PRO. ANN. arts. 28.06, 28.09, & 28.10 (Vernon
1989).  Appellant filed his motion to
quash under Article 27.08(2), asserting a facial challenge to the
indictment.  However, his contentions
were not limited to the State=s pleading error.  Appellant
also sought and obtained a pretrial determination of the facts underlying his
limitations defense.   He is essentially
attacking the trial court=s pretrial determination of these facts in this appeal.[2]  
The
matters which can be reviewed on a pretrial basis with respect to indictments
and informations are limited.  State v.
Rosenbaum, 910 S.W.2d 934 (Tex.Cr.App.1995)(opinion adopting dissent on grant
of rehearing).  The Court of Criminal
Appeals held in Rosenbaum that a trial court may not go behind the face
of an indictment to conduct a Aminitrial on the merits@ of allegations made in a charging instrument. State v. Rosenbaum,
supra at 947-48.  AAn indictment must be facially tested by
itself under the law, as a pleading; it can neither be supported nor defeated
as such by what evidence is introduced on trial.@  State v. Rosenbaum, supra at
948.   The court further noted that Asubstance@ exceptions to charging instruments Aconstitute facial attacks on the charging instrument itself without
introduction, examination or consideration of supporting evidence.@ 
State v. Rosenbaum, supra at 945. 
The Court of Criminal Appeals recently addressed the pretrial
consideration of a limitations defense in Ex parte Tamez, 38 S.W.3d 159
(Tex.Cr.App.2001).  The court recognized
that a defendant is permitted to pursue a pretrial writ of habeas corpus when
the State=s pleading, on its face, shows that the
offense charged is barred by limitations. 
Ex parte Tamez, supra at 160. 
The court then held that the reviewing court=s inquiry is limited to a consideration of
the face of the pleading.   Ex parte
Tamez, supra at 160.




The court
in Proctor held that a limitations defense presented prior to trial is
to be filed Aunder@ Article 27.08(2).  Proctor v.
State, supra at 844.   The court=s use of the word Aunder@ indicates that the rules and procedures for motions filed under
Article 27.08(2) to set aside indictments and informations are to be
applied.   As per the holding in Rosenbaum,
appellant was not entitled to a pretrial determination of the facts surrounding
the issues of limitations and tolling. 
Appellant cannot complain of an adverse ruling made by the trial court
on a matter which the trial court was not permitted to consider.  The trial court=s denial of his limitations defense based
upon a pretrial assessment of the evidentiary facts surrounding the defense,
therefore, did not constitute error. 
Appellant=s sole point of error is overruled.
The
concurring opinion suggests that the State had the burden of proving beyond a
reasonable doubt that appellant=s prosecution was not limitations barred.   In light of our holding that appellant was not entitled to a
pretrial determination of the facts surrounding his limitations defense, we
disagree with the suggestion that the State had the burden of proof if such a
hearing were held.  We agree that the
State bears the burden of proof on a pretrial determination of an entrapment
defense.  However, the defense of entrapment
is an exception to the rule prohibiting pretrial factual determinations on the
merits as noted by the court in Rosenbaum.  State v. Rosenbaum, supra at 947; see TEX. CODE CRIM.  PRO. ANN. art. 28.01(9) (Vernon 1989).  AThe entrapment defense is unique in that the Legislature deliberately
provided it may be tested and determined at a pretrial hearing.@ 
Taylor v. State, 886 S.W.2d 262, 265 (Tex.Cr.App.1994).  In the absence of  a legislative provision for a pretrial determination of the facts
supporting or defeating a limitations claim, we disagree with the assertion
that the procedures for considering an entrapment defense are applicable to a
limitations defense.
The
judgment of the trial court is affirmed.
 
W. G.
ARNOT, III
CHIEF
JUSTICE
December 19, 2002
Publish.  See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.




                                                        CONCURRING
OPINION
For the
reasons stated in this opinion, I would hold that, under our current law, the
State was required to and did prove beyond a reasonable doubt that the
prosecution was not limitations-barred. 
I would agree with the majority that appellant waived any error in
connection with the ruling on his motion to quash.  However, I would hold that the trial court was exercising
appropriate discretion when it conducted an evidentiary pretrial hearing on
appellant=s motion to quash the indictment.  At the risk of being redundant, I find it
necessary to reiterate certain factual observations from the record.
Before he
entered his guilty plea, appellant filed a motion to quash the indictment.  In his motion, appellant argued that the
prosecution was barred by limitations. 
Appellant and the State acknowledge that the offense charged in this
case is subject to a three-year statute of limitations.  Article 12.01(5).  The State acknowledges that, on its face, the indictment appears
to be barred by limitations, but argues that the statute was tolled by
appellant=s absence from the state during a portion of
the applicable three-year period and also argues that, during that time,
appellant used an alias which made his apprehension more difficult.  The State did not address tolling in the
indictment.
In its
findings, the trial court found that the State proved that the limitations
period was tolled because appellant was out of state for a period of time
during the pendency of the indictment. 
The court also noted that appellant used an alias during this period of
time, making his apprehension more difficult. 
Appellant disagrees with the trial court=s ruling, and he presents one issue to this court:  AThe indictment is barred by the statute of limitations.@  In
order to assess appellant=s complaint properly, I believe that it is necessary first to determine
whether the trial court properly could have conducted an evidentiary pretrial
hearing on the motion.  Next, if such a
hearing is proper, what is the correct standard by which an appellate court
should review the trial court=s ruling on the motion?
The issue
of limitations may be raised, among other ways, by filing a pretrial motion to
dismiss under Article 27.08(2).  Proctor
v. State, 967 S.W.2d at 844.  Article
27.08(2) provides in part:
There is no exception to the substance of an
indictment or information except: (2) That it appears from the face thereof
that a prosecution for the offense is barred by a lapse of time.
 




An exception to the
substance of an indictment is a matter that can be raised pretrial under TEX.
CODE CRIM. PRO. ANN. art. 28.01 (Vernon 1989). 
Article 28.01 provides in relevant part:
Sec. 1.
The court may set any criminal case for a pretrial hearing before it is
set for trial upon its merits, and direct the defendant and his attorney, if
any of record, and the State's attorney, to appear before the court at the time
and place stated in the court's order for a conference and hearing.  The defendant must be present at the
arraignment, and his presence is required during any pretrial proceeding.  The pretrial hearing shall be to determine
any of the following matters:
 
(4)
Exceptions to the form or substance of the indictment or information. (Emphasis
added)[3]
 
I would
hold that Article 27.08(2) provides for exceptions to indictments and that a
vehicle for presenting such exceptions lies in Article 28.01.  It appears to me that the trial court, while
not required to conduct a pretrial hearing on appellant=s motion, acted within its discretion when it
did.  Although Article 28.01 authorizes
the trial court to set any criminal case for a pretrial hearing before the case
is set for trial upon the merits, the language is not mandatory but, rather, is
directed to the trial court's discretion. 
Hicks v. State, 508 S.W.2d 400, 403 (Tex.Cr.App.1974).  Because I would hold that it was within the
discretion of the trial court to conduct the pretrial hearing, it would then
become necessary to determine the proper burden of proof at that hearing and
the standard against which an appellate court should gauge the trial court=s ruling.
Prior to
1998, the State was required to prove beyond a reasonable doubt that the
offense charged was not limitations-barred. 
This was true in every case, whether the defendant raised the issue or
not.  If the State failed to make the
proof, the defendant was entitled to an acquittal.  Proctor v. State, 967 S.W.2d at 842.




In Proctor,
the defendant was convicted of an aggravated robbery in which a person was
killed; he was one of five men involved in the robbery.  Proctor was found guilty, but the court of
appeals reversed the conviction because of errors in the jury selection
process.  Proctor v. State, No. B14-82-870-CR
(Tex.App. B Houston [14th Dist] 1985, pet=n ref=d)(unpublished opinion).  The
State filed another indictment after the statutory period of limitations had
expired.  During the jury=s deliberations at the punishment stage of
the trial, Proctor filed a motion for instructed verdict of acquittal for the
reason that the prosecution was barred by the statute of limitations.  Nothing else had been filed in which
limitations had been urged.  The trial
court denied the motion, and Proctor was again convicted of the offense of
aggravated robbery.  On the appeal from
that conviction, this court held that Proctor=s conviction was jeopardy-barred, and we reversed the conviction.  Proctor v. State, 806 S.W.2d 252 (Tex.App. B Eastland 1990).  The Court of Criminal Appeals reversed that decision and remanded
the cause to this court for consideration of points which we did not consider
in light of our holding regarding jeopardy. 
Proctor v. State, 841 S.W.2d 1 (Tex.Cr.App.1992).
On remand,
we held that Proctor had failed to object to the limitations defect timely, and
we affirmed the conviction.  Proctor v.
State, 871 S.W.2d 225 (Tex.App. B Eastland 1993).  The Court of
Criminal Appeals again reversed this court, and it noted that the errors raised
by Proctor were insufficient evidence claims and did not require prior
objection. 
On remand
to this court, we determined that the evidence at trial was insufficient to
prove that the prosecution was within the limitations period, and we again
ordered an acquittal.  Proctor v. State,
No. 11-88-00149-CR (Tex.App. B Eastland 1996)(unpublished opinion). 
The Court of Criminal Appeals granted review Ato reconsider our holdings that the State
must always prove beyond a reasonable doubt that its prosecution is not limitations-barred.@ 
Proctor v. State, 967 S.W.2d at 843 (hereinafter Proctor
1998).  




Proctor 1998 tells us several things.  First, the statute of limitations is for the
benefit of a person charged with a crime and is not for the benefit of the
State.  Proctor 1998 also
instructs us that the statute of limitations prevents a person from defending
against an allegation when facts might have become blurred by time or when one
charged has been law-abiding for several years; the statute also lessens the
possibility for blackmail.  The statute
of limitations is a procedural rule in the nature of a defense.  Proctor v. State, 967 S.W.2d at 843; see
Floyd v. State, 983 S.W.2d 273 (Tex.Cr.App.1998)(the court reiterated the
proposition that limitations is a defense); see also TEX. PENAL CODE ANN. ' 2.03 (Vernon 1994)(defines defenses and
provides that a reasonable doubt on a defense requires that a defendant be
acquitted); see and compare TEX. PENAL CODE ANN. ' 2.04 (Vernon 1994)(defines affirmative defenses and places the burden
upon a defendant to prove them by a preponderance of the evidence).  Being an Aact of grace@ to a
defendant, the defendant is the one who should have the Aburden of asserting that defense or losing
it, just as he would any other defense.@  Proctor v. State, 967 S.W.2d
at 843-44.
The court
in Proctor 1998 set out Athree distinct kinds of rules (or >rights=)@ involved in our system of adjudication.  First, there are those rules which Aare absolute, systemic requirements and prohibitions.@ 
Those rules are not controlled by the desires of the litigants.  Another category involves those rules which
must be implemented unless the parties expressly waive them.  A third category involves rules which must
be implemented upon request.  Although
prior case law placed the issue of limitations in the first category, it is the
third category into which the Court of Criminal Appeals in Proctor 1998
placed the issue of limitations.  The
law now is that limitations is a defense which is forfeited if not asserted at
or before the guilt/innocence phase of the trial; and, unless it is timely
asserted, the State has no burden to prove it. 
Proctor v. State, 967 S.W.2d at 843-44.
As
discussed earlier, a defendant may raise the defense of limitations by filing a
motion to dismiss under Article 27.08(2). 
I am aware that, absent controlling authority to the contrary, the
defendant generally has the burden of proof on a motion to quash an indictment.  See Wheat v. State, 537 S.W.2d 20, 21
(Tex.Cr.App.1976).  However, I believe
that here there is controlling authority to the contrary.  As I have indicated, exceptions to the form
or substance of an indictment are provided for in Article 28.01, section
1(4).  Entrapment, for example, is also
provided for in Article 28.01, section 1(9). 
I believe that the case law which involves entrapment is instructive
when we consider the defense of limitations. 
When discussing the issue of entrapment, also a defense, the court in
Torres v. State, 980 S.W.2d 873, 875 (Tex.App. B San Antonio 1998, no pet=n), wrote:
[E]ntrapment is a defense....At the pre-trial
hearing, the accused has the burden of producing evidence raising the
defense.  After the accused has met this
initial burden, the burden of persuasion falls on the State to disprove
entrapment beyond a reasonable doubt. 
England v. State, 887 S.W.2d 902, 908 (Tex.Crim.App.1994); Taylor [v.
State, 886 S.W.2d 262, 265 (Tex.Crim.App.1994)].
 
I would
hold that, under the current status of the law, if the issue of limitations is
raised by pretrial motion and entertained by the trial court and if there is
some evidence that the prosecution is not within the limitations period, the
State must prove beyond a reasonable doubt that the prosecution is not
limitations-barred.  That is the rule
expressly applied to jury trials in Proctor 1998, and I see no reason to
apply a different rule when the issue is raised in one of the other permissible
methods.  




The next
logical step would be to determine whether the State met its burden in
connection with the limitations issue. 
The trial court must review the evidence and determine, as a matter of
law, whether the prosecution is limitations-barred.  Again, borrowing from the entrapment body of law, our review
centers on the legal sufficiency of the evidence.  Torres v. State, supra at 875. 
A court of appeals should review the evidence in a light most favorable
to the trial court=s
ruling and determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt and also could have
found against appellant on the issue of a defense, in this case limitations,
beyond a reasonable doubt.  Any
inconsistencies are resolved in favor of the finding.  Curry v. State, 30 S.W.3d 394 (Tex.Cr.App.2000); Adelman v.
State, 828 S.W.2d 418 (Tex.Cr.App.1992). 
The trial court, as the trier of fact, is to weigh the evidence and draw
a legal conclusion as to the existence of the defense.  See Sebesta v. State, 783 S.W.2d 811, 814
(Tex.App. B Houston [1st Dist.] 1990, pet=n ref=d).  Because the only issue in
this case is the defense of limitations, my observations are limited to that
issue.
At the
hearing on the motion to quash, appellant testified that he resided in Texas
from August 1996 until October 1999 when he moved to Memphis, Tennessee.  Appellant was originally arrested for this
offense on August 8, 1996.  He posted
bond, but was later arrested for this offense in Mississippi on January 9,
2001.  Meanwhile, on August 13, 1998,
appellant had been arrested in Memphis, Tennessee; he was using an alias,
Gerald Lenear, a Aname
[he] just thought up.@  Appellant testified that he had been
visiting there for about a week and that, when the matter of the arrest was
cleared up after a few days, he returned to Texas.  
The trial
court denied appellant=s
motion to quash.  The trial court was
the fact finder at the pretrial hearing on appellant=s motion and, as such, it could believe or
disbelieve all or any part of the testimony. 
From the dates of arrest and the use of an alias alone, the trial court
could have found that appellant was absent from the jurisdiction as claimed by
the State.  If there is any conflicting
evidence in the pretrial hearing, a trial court does not err in overruling a
motion to quash.  Sebesta v. State,
supra.  The trial court did not err in
conducting a pretrial hearing on appellant=s motion, nor did it err when it overruled the motion.




Subsequently,
appellant waived a jury, entered a plea of guilty, and signed a judicial
confession.  As the trial proceeded upon
appellant=s open guilty plea, additional testimony
regarding appellant=s
whereabouts and his use of an alias was placed in the record.  Several witnesses were called by appellant
at the plea hearing, including his wife who came from Tennessee to
testify.  Appellant testified that, when
he was originally arrested on this charge, he made an arrangement with a police
detective.  This arrangement required
that appellant work undercover on drug deals in exchange for favorable
treatment on his case.  Appellant did
the undercover work and was later called to court to testify.  In April 1997, he was sworn as a witness in
one of the cases on which he had worked. 
The trial was not to start until later. 
Apparently, word of his undercover activities reached the wrong people,
and appellant and his family began receiving death threats.  Shots were fired into his grandfather=s house. 
Appellant testified that he Amade scarce@ from
that time on.  He also testified that he
was staying at different places during this time.
Appellant=s sister, Keena Farrar, testified.  She said that the shootings were a constant
thing  Aall the way up until actually my brother left.@  She
testified that her brother would Acome down@ to
pick up his son and that the threats would start all over again.  She was told that Athe Colombians@ wanted her brother.  Others
testified to similar circumstances, including appellant=s first son=s mother.  The prosecutor asked
her, AMs. Anderson he actually lives in Tennessee?@  She
replied, AYes, now.@
Generally,
an appellate court is bound to look only at the evidence presented at the
pretrial hearing to determine whether the trial court erred in its ruling.  However, the issue was relitigated
consensually during the plea hearing. 
In such a case, the trial court may consider the testimony.  Rachal v. State, supra at 809; Peddicord v.
State, 942 S.W.2d 100 (Tex.App. B Amarillo 1997, no pet=n).  I would hold that the
evidence is sufficient, beyond a reasonable doubt, to support the trial court=s ruling.
I agree
with the majority that appellant waived any error when he entered his
plea.  At the time of his plea,
appellant and his trial counsel executed a written plea agreement.  The agreement 
provided: AI hereby waive my right to be tried upon an
indictment returned by a grand jury [and] any 
and all defects, errors, or irregularities, whether of form or
substance, in the charging instrument.@  I concur in the result reached
by the majority, but I would affirm the judgment of the trial court for the
reasons stated in this concurring opinion.
 
December 19, 2002                                                                 JIM
R. WRIGHT
Publish. 
See TEX.R.APP.P. 47.3(b).                           JUSTICE
Panel consists of: Arnot, C.J.,
and
Wright, J., and McCall, J.




     [1]Appellant argues that the testimony offered at the
punishment hearing cannot be considered on appeal because it was not offered at
the hearing on the motion to quash the indictment.  We agree with the concurring opinion=s determination that this evidence can be considered on
appeal under Rachal v. State, 917 S.W.2d 799, 809 (Tex.Cr.App.), cert. den=d, 519 U.S.
1043 (1996). 


     [2]Appellant=s
sole issue on appeal reads:  AThe indictment is barred by the statute of limitations.@  A cursory
reading of this issue indicates that appellant is attacking the State=s pleading error. 
However, appellant=s briefs indicate that he is attacking the trial court=s assessment of the proof offered regarding the tolling
of limitations.  Moreover, appellant
waived any error with respect to language of the indictment.   Appellant and his trial counsel executed a
written plea agreement in connection with his guilty plea which contained the
following waiver:  AI hereby waive my right to be tried upon an indictment
returned by a grand jury; any and all defects, errors, or irregularities,
whether of form or substance, in the charging instrument.@  (Emphasis
added)


     [3]Not all cases lend themselves in all respects to
pretrial determination.  For instance,
in State v. Rosenbaum, supra, the original dissenting opinion became the
opinion of the majority upon rehearing. 
The issue was whether the trial court could litigate, by pretrial
hearing, the issue of materiality in a perjury case.  The court held that the issue could not be determined by pretrial.  The court noted that materiality was not
mentioned in TEX. CODE CRIM. PRO. ANN. art. 27.02 (Vernon 1989) and neither was
it delineated in TEX. CODE CRIM. PRO. ANN. art. 27.08 (Vernon 1989).  The court also noted that materiality was an
element of the offense and not a defense. 
This case is distinguishable. 
First, limitations is embraced by both Article 27.08(2) and Article
28.01.  Further, limitations, unlike
materiality, is a defense. 


