               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                                NO. PD-1402-09



                              WILLIAM RAY PHILLIPS, Appellant

                                                      v.

                                       THE STATE OF TEXAS

        ON APPELLANT’S’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE TENTH COURT OF APPEALS
                         McLENNAN COUNTY

                  K ELLER, P.J., filed a dissenting opinion in which K EASLER, and H ERVEY,
JJ., joined.

        The Court appears to misunderstand the nature of the ex post facto prohibition. Because the

legislature has not passed an ex post facto law, there has been no ex post facto violation in this case.

And because appellant failed to raise his statute-of-limitations defense at trial, he has forfeited his

complaint.

                 A. Only the Legislature Can Commit an Ex Post Facto Violation

        The United States Constitution provides: “No state shall . . . pass any . . . ex post facto Law.”1



        1
            U.S. CONST . art. I, § 10, cl. 1.
                                                                           PHILLIPS DISSENT — 2

The Texas Constitution provides: “No . . . ex post facto law . . . shall be made.”2 Thus, something

can be “ex post facto” only if it is a “law,” and the language in the United States Constitution

specifies that a “law” for these purposes is something that is “passed.”

        In Ortiz v. State, we explained: “In both provisions, the language is directed at the legislature,

not the courts.”3 And though the Court now relies upon Ieppert v. State,4 we explained in Ortiz that

“[i]n Ieppert v. State, we did not appear to appreciate the distinction.”5 Under Supreme Court

precedent, we explained, “the ex post facto clause does not apply to the judiciary.”6 Specifically, “an

ex post facto problem does not arise from a trial court’s erroneous retroactive application of a statute,

but only if the statute itself has retroactive effect.”7 Although the retroactive application of a statute

by the judiciary may implicate due process, “due process does not incorporate all of the ex post facto

clause’s strictures.”8 In finding that “the protections are not coextensive,” the Supreme Court has

        2
            TEX . CONST . art. I, § 16.
        3
            93 S.W.3d 79, 91 (Tex. Crim. App. 2002).
        4
            908 S.W.2d 217 (Tex. Crim. App. 1995).
        5
          Ortiz, 93 S.W.3d at 91. In any event, Ieppert addressed only whether ex post facto claims
were forfeitable; it did not address whether the defendant’s statute-of-limitations claim, if true,
would establish an ex post facto violation. See Ieppert, 908 S.W.2d at 218 (“The Court of Appeals
did not reach the merits of” the ex post facto claim, “holding instead that appellant forfeited the right
to complain of it on appeal because he did not first raise it in the trial court.”), 220 (holding that “ex
post facto prohibitions do not merely confer upon the people a waivable or forfeitable right not to
have their conduct penalized retroactively” and remanding for proceedings consistent with the
opinion).
        6
            Ortiz, 93 S.W.3d at 91 (citing Rogers v. Tennessee, 532 U.S. 451 (2001)).
        7
         Id. (citing Johnson v. United States, 529 U.S. 694 (2000) and summarizing its holding in
a following parenthetical as: “because new statute did not apply retroactively, no ex post facto
question arises; only question is whether the old statute authorized the trial court’s action”).
        8
            Id. (citing Rogers, 532 U.S. at 457-62).
                                                                         PHILLIPS DISSENT — 3

“pointed to ‘important institutional and contextual differences between legislating, on the one hand,

and common law decisionmaking, on the other.’”9 And in a statute-of-limitations context, we have

specifically recognized that the Ex Post Facto Clause “is a limitation upon the powers of state

legislatures and not state courts.”10 Contrary to the Court’s contention that this is a “subtle”

argument,11 the distinction between legislative action and judicial decision-making is crucial.

       The Court’s attempt to distinguish Ortiz is internally inconsistent.          The Court first

acknowledges that the insertion of the words “or status” in the jury charge was mere jury charge

error, even though the words “or status” were in a later version of the statute but not in the version

of the statute in effect at the time the offense was committed.12 But the Court says that it would be

an ex post facto violation if instead of “or status,” the extraneous words were “a public servant.” The

Court’s interpretation Ortiz is simply at odds with the express language and holding in that case.

       The Court claims that a jury charge erroneously containing the words “a public servant”

would be “an ex post facto violation under Johnson.”13 But the Court’s own parenthetical quote from

Johnson effectively refutes the Court’s contention: “To prevail on this sort of ex post facto claim,

Johnson must show . . . that the law he challenges operates retroactively (that it applies to conduct

completed before its enactment).14


       9
            Id. (quoting Rogers, 532 U.S. at 460).
       10
            Proctor v. State, 967 S.W.2d 840, 845 (Tex. Crim. App. 1998).
       11
            See Court’s op. at 18.
       12
            Court’s op. at 12 n.32.
       13
            Id.
       14
            See id. (quoting Johnson, 529 U.S. at 699) (emphasis added).
                                                                            PHILLIPS DISSENT — 4

          The Court contends that Carmell v. Texas15 found the “application” of a new law to run afoul

of the ex post facto prohibition “even though the law itself was not facially retroactive.”16 The Court

cites to pages 530-31 in Carmell as support, but I do not see anything in those pages that stands for

the proposition attributed by the Court.17 And I am unable to find any passage in Carmell that says

this.18

          The law at issue in Carmell changed the quantum of evidence necessary to support a

conviction for certain sexual offenses—permitting conviction on uncorroborated testimony in some

situations in which corroboration had previously been required.19 The statute contained no savings

provision,20 so it was applicable to any case that met its terms, which included subsequent trials

regardless of whether the offenses were committed before or after the statutory change.21

          The Court also contends that Scott v. State22 involved a holding that an ex post facto violation


          15
               529 U.S. 513 (2000).
          16
               Court’s op. at 7; see also Court’s op. at 19.
          17
               See Carmell, 529 U.S. at 530-31.
          18
               See id., passim.
          19
               See Carmell, 529 U.S. at 516-18 (addressing changes to TEX . CODE CRIM . PROC. art.
38.07).
          20
               See Acts 1993, 73rd Leg., ch. 200, § 1 & passim; Acts 1993, 73rd Leg., ch. 900, § 12.01 &
passim.
          21
            See Carmell, 529 U.S. at 530 (“Under the law in effect at the time the acts were
committed, the prosecution's case was legally insufficient and petitioner was entitled to a judgment
of acquittal, unless the State could produce both the victim’s testimony and corroborative evidence.
The amended law, however, changed the quantum of evidence necessary to sustain a conviction;
under the new law, petitioner could be (and was) convicted on the victim's testimony alone, without
any corroborating evidence.”).
          22
               55 S.W.3d 593 (Tex. Crim. App. 2001).
                                                                          PHILLIPS DISSENT — 5

occurs when a statute is not “facially retroactive” but is applied retroactively. The Court is mistaken.

Scott held that the enhancement statute at issue was retroactive.23 Although the statute contained the

“standard” savings clause applicable to enhancements, the standard savings clause was not sufficient

for ex post facto purposes because the enhancement was not a standard enhancement.24 Ordinarily,

a law creating an enhancement by prior conviction does not violate the Ex Post Facto Clause so long

as the law was in place before the commission of the new offense for which the prior conviction is

being used to enhance, even though the prior conviction may predate the enhancement provision.25

No ex post facto violation occurs in that situation because the enhancement “punish[es] the new

offense rather than the prior conviction.”26 But the enhancement provision at issue in Scott modified

what was previously an explicit assurance by statute that a defendant placed on deferred adjudication

would not be subject to “disqualifications or disabilities” if he successfully completed his deferred

adjudication.27 The legislature could modify that statutory assurance for people who would be placed

on deferred adjudication in the future, but it could not modify that assurance for people who had

been placed on deferred adjudication in the past.28 To prevent the enhancement statute from having

unconstitutionally retroactive reach, then, the legislature should have drafted a special savings clause


       23
          Id. at 596-98; specifically see id. at 596 (“We conclude that the Legislature intended to
permit the use for enhancement of deferred adjudications that were assessed before the enactment
of the enhancement provision.”).
        24
             Id. at 596-98.
        25
             Id. at 596.
        26
             Id.
        27
             Id. at 596-98.
        28
             See id.
                                                                          PHILLIPS DISSENT — 6

for the special situation with which it was confronted, but it did not do so.

        The Court claims that the present case is analogous to Scott, but it is not. In Scott, it was the

enhancement provision itself that was retroactive; the trial court made no mistake in construing the

meaning of that provision. As will be discussed later, the statute at issue in the present case

contained a savings provision tailored for the statute-of-limitations context that prevented the statute

from having unconstitutionally retroactive reach.

        The Court suggests that its holding is supported by six statute-of-limitations cases that found

ex post facto violations.29 First, the Court cites Stogner v. California30 for the proposition that the

Ex Post Facto Clause forbids the resurrection of a time-barred prosecution.31 In that case, the

California statute expressly authorized the resurrection of a time-barred prosecution.32 The Supreme

Court’s statement that the “Ex Post Facto Clause forbids resurrection of a time-barred prosecution”

introduced a discussion about the Reconstruction Congress’s rejection of a bill that would have done




        29
           The Court does not directly suggest that its holding is supported Judge Learned Hand’s
opinion in Falter v. United States, 23 F.2d 420 (2d Cir. 1928), but it cites Falter for the “rationale”
for the rule that a legislature cannot retroactively extend a limitations period for an offense that is
already barred by limitations. See Court’s op. at 11 n.28. But Judge Learned hand was addressing
a statutory amendment that, by its terms, had retroactive reach. Falter, 23 F.2d at 425 (“In
November, 1921, the proviso was added by which the period was extended to six years in the case
of ‘offenses involving the defrauding or attempts to defraud the United States or any agency thereof,
whether by conspiracy or not.’ 18 USCA § 582. The application of the proviso to the case at bar
being clear from its last sentence, the defendants argue that the amendment is ex post facto
legislation. Perhaps they would be right, if the earlier statute had once run in their favor.”) (emphasis
added).
        30
             539 U.S. 607 (2003).
        31
             Court’s op. at 13-15.
        32
             539 U.S. at 609.
                                                                          PHILLIPS DISSENT — 7

so.33 In the next paragraph, the Supreme Court referred to State Supreme Courts as holding that

“laws reviving time-barred prosecutions are ex post facto.”34 In its concluding paragraph, the

Supreme Court stated: “We conclude that a law enacted after expiration of a previously applicable

limitations period violates the Ex Post Facto Clause when it is applied to revive a previously

time-barred prosecution.”35 Though the Supreme Court used the word “applied” in this sentence,

it was clearly talking about an Ex Post Facto violation being caused by the “law” itself, not by an

(erroneous) application of the law.

        The Court also relies upon State v. Sneed,36 an early Supreme Court of Texas decision.37 The

Sneed opinion is brief, and the Court has quoted the opinion in its entirety. For the convenience of

the reader, I set it out below:

        In this case the bar of the statute of limitations of one year was completed before the
        code went into operation, by which the period of limitation of prosecutions in such
        misdemeanors was extended to two years. The state having neglected to prosecute
        within the time prescribed for its own action, lost the right to prosecute the suit. To
        give an act of the legislature, passed after such loss, the effect of reviving the right
        of action in the state, would give it an operation ex post facto, which we cannot
        suppose the legislature intended.38

The Sneed court may have been suggesting that it was construing the new statute narrowly to avoid

a constitutional violation, a common rule of construction grounded on the presumption that the


        33
             Id. at 616.
        34
             Id. at 617 (emphasis added).
        35
             Id. at 632-33.
        36
             25 Tex. 66 (1860).
        37
             Court’s op. at 14-15.
        38
             Sneed, 25 Tex. at 67.
                                                                           PHILLIPS DISSENT — 8

legislature intended the law to comply with the constitution.39 But Sneed did not hold that an ex post

facto violation could arise from a trial court’s erroneous application of a statute. Even if it did, the

Ortiz decision would control because Ortiz is far more recent, is from this Court, and contains a

more extensive and specific discussion regarding the issue at hand.

        Third, the Court relies upon People v. Shedd,40 a Colorado Supreme Court case.41 In that

case, the defendant raised a statute-of-limitations claim at trial, and the trial court dismissed the case

on that basis.42       Affirming that decision, the Colorado Supreme Court stated: “Retroactive

application of a statute of limitations to revive a previously barred prosecution violates the

fundamental constitutional prohibition against ex post facto legislation.”43 Significantly, the court

did not say that the defendant suffered 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.44 It did not have to. Because the

defendant timely raised a limitations claim, it was either true that the statute did not retroactively

extend limitations for a time-barred prosecution—perhaps by being narrowly construed to avoid an

ex post facto violation—or it did operate in such a retroactive manner, with such extension being

invalid under the prohibition against ex post facto laws. What is significant is that the Colorado




        39
             See Lebo v. State, 90 S.W.3d 324, 329-30, 330 n.22 (Tex. Crim. App. 2002).
        40
             702 P.2d 267 (Colo. 1985).
        41
             Court’s op. at 15.
        42
             Shedd, 702 P.2d at 268.
        43
             Id.
        44
             See id.
                                                                        PHILLIPS DISSENT — 9

court recognized that the ex post facto prohibition was directed against “legislation.”45 But even if

the Colorado decision did stand for the proposition cited for it by the Court, it preceded the United

States Supreme Court decisions in Rogers and Johnson upon which our Ortiz decision relied.

       In a footnote, the Court cites Commonwealth v. Rocheleau,46 a Massachusetts Supreme Court

decision, and United States v. Fraidin,47 a federal district court opinion.48 The Rocheleau decision

held that indictments were barred by limitations because limitations for a time-barred prosecution

cannot be legislatively extended.49 However, the words “ex post facto” appear nowhere in the

Massachusetts court’s opinion.50 And the Court’s own quotation from the Fraidin opinion is at odds

with the Court’s contention: The federal district court said, “[B]ut such a statute cannot operate to

revive offenses which were barred at the time of its enactment since it would in such case be ex post

facto.”51 Thus, Fraidin recognized that it was the operation of the statute that mattered under the ex

       45
           Analysis of the Colorado statute may be complicated by some unusual aspects of the case.
Originally, sex offenses in Colorado had a limitations period of three years. See People v. Holland,
708 P.2d 119, 119 (Colo. 1985). For sex offenses in which the victim was a child under fifteen years
of age, the 1982 amendment provided: “The period of time during which a person may be prosecuted
shall be extended for an additional seven years . . . .” See id. at 119 n.2. No savings provision was
enacted at the time the amendment was passed, but a provision purporting to express the legislature’s
intent was enacted in 1985. See id. at 120. The intent provision was framed in such a way as to
comply with the rule later expressed in Stogner: “The intent of the general assembly in enacting
section 16-5-401(6) and (7) in 1982 was to create a ten-year statute of limitations as to offenses
specified in said subsections committed on or after July 1, 1979.” See Holland, 708 P.2d at 120.
       46
            404 Mass. 129, 533 N.E.2d 1333 (1989).
       47
            63 F. Supp. 271 (D.C. Md. 1945).
       48
            Court’s op. at 16 n.49.
       49
            Rocheleau, 404 Mass. at 130-31, 533 N.E.2d at 1334.
       50
            See id., passim.
       51
            Fraidin, 63 F. Supp. at 276 (emphasis added).
                                                                       PHILLIPS DISSENT — 10

post facto clause. In any event, Rocheleau and Fraidin were both decided before the United States

Supreme Court decisions in Rogers and Johnson upon which our Ortiz decision relied.

       Finally, the Court relies upon State v. Garcia,52 a Kansas Supreme Court case.53 The Court

contends that the case stands for the proposition that a defendant cannot waive an ex post facto claim

in the limitations context, but the Court overlooks the fact that the Kansas court drew a sharp

distinction between a prosecution that was outside the limitations period and a case in which the

period of limitations was retroactively extended by statute:

       The State’s arguments muddy the issue. By the time the rape charge was filed against
       Garcia in late January 2004, the statute of limitations already had been extended by
       the legislature to 1 year after his August 2003 DNA testing-to August 2004.
       Accordingly, the proper question is not whether he was being prosecuted outside of
       the statute of limitations. Under the amended statute, he clearly fell within the
       limitations period; therefore, the statute of limitations defense was not available to
       him, and case law concerning waiver of a limitations period as an affirmative defense
       is inapplicable. Rather, the proper question is whether the amended statute
       lengthening the limitations period was applied contrary to a constitutional provision,
       i.e., the Ex Post Facto Clause, and we have held that it was.54

As the above passage shows, the defendant in the Kansas case had no statute of limitations defense

because the new statute extended the period of limitations. The Kansas court found that very fact

to be the reason the prosecution’s waiver arguments were unavailing.

                 B. The Legislature Did Not Commit an Ex Post Facto Violation

       The 1997 amendments to the limitations statute contained the following savings provision

that prevented the statute from operating contrary to the dictates of Stogner:



       52
            169 P.2d 1069 (Kan. 2007).
       53
            Court’s op. at 17.
       54
            Id. at 1076 (emphasis added).
                                                                        PHILLIPS DISSENT — 11

        The change in the law made by this Act does not apply to an offense if the
        prosecution of the offense became barred by limitation before the effective date of
        this Act. The prosecution of that offense remains barred as though this Act had not
        taken effect.55

So the savings provision prevented the 1997 amendments from applying to appellant’s sex offenses

that became barred in 1993. The parties and the trial court were simply mistaken in believing that

the 1997 statute applied. The legislature did not pass an ex post facto law.

        This case is no different than a case in which the statute of limitations has simply not been

complied with. It is no different from a case in which the statute of limitations is five years, and has

always been five years, but the charging instrument was not returned until after seven years (with no

tolling circumstances present). Under the applicable statutes, appellant’s case was time-barred, and

all of the trial participants were simply mistaken in believing otherwise. It does not matter how the

statute of limitations was later amended, if those later amendments do not apply to appellant. Those

inapplicable amendments cannot magically convert a plain vanilla statute-of-limitations claim into

an ex post facto violation.

                              C. Limitations Defense Was Forfeited

        The question now is whether appellant can raise his plain-vanilla limitations claim for the

first time on appeal. In Proctor v. State, we held that statute of limitations was a defense that a

defendant forfeited if he failed to raise it before or at trial.56 The Court contends that Proctor is

distinguishable and governs a statute-of-limitations defense only if it involves facts rather than “pure



       55
           Acts 1997, 75th Leg., Ch. 740, § 3. The 2007 amendments that again changed the period
of limitations for sex offenses contained an almost identically worded savings provision. See Acts
2007, 80th Leg., ch. 593, § 4.01(c).
        56
             967 S.W.2d at 844.
                                                                        PHILLIPS DISSENT — 12

law.”57 The Court’s contention is at odds with the reasons given in Proctor for holding the defense

to be forfeitable. Several reasons we gave for treating a statute-of-limitations defense as forfeitable

were: (1) “limitations has little to do with the truth-finding function of the criminal justice system,”

(2) “a defendant might make a calculated decision to waive the defense when the statute is about to

run in order to gain time for plea bargaining,” and (3) “a defendant might want to forego the

limitations defense in order to vindicate his good name in the face of a serious and publicly known

charge.”58 All of these reasons apply equally to situations in which an offense is barred by

limitations as a matter of law.

        Relying upon cases that say a (non-reparable) limitations bar may be raised in pretrial habeas

proceedings,59 the Court claims that this somehow means that a (non-reparable) limitations bar may

be raised for the first time on appeal. But there is no necessary connection between the two

concepts. Indeed, the facial constitutionality of a statute that defines the offense may be challenged

in a pretrial habeas proceeding,60 but such a claim cannot be raised for the first time on appeal.61 The

Court claims that Tita v. State distinguished between factual proof under Proctor and an irreparable



        57
             Court’s op. at 16.
       58
          Id. I add to this list the possibility that foregoing a limitations defense could be part of a
plea agreement involving multiple charges. For example, a defendant accused of capital murder
might forego limitations defenses for lesser offenses in exchange for the State’s waiver of the death
penalty.
       59
         Ex parte Smith, 178 S.W.3d 797, 801-02 (Tex. Crim. App. 2005); Ex parte Tamez, 38
S.W.3d 159, 160 (Tex. Crim. App. 2001).
       60
           Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (“Pretrial habeas can be used
to bring a facial challenge to the constitutionality of the statute that defines the offense.”).
        61
             Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009).
                                                                         PHILLIPS DISSENT — 13

bar, but Proctor was distinguished on the basis that the Code of Criminal Procedure contains a

requirement that an indictment reflect on its face that the prosecution is not barred by limitations.62

Unfortunately for appellant, the Code of Criminal Procedure also provides that a defendant forfeits

error if he fails to object before trial to a defect of form or substance in the indictment.63

         The Court cites Ex parte Smith for the proposition that a limitations bar may be raised “in

a pretrial motion to quash or dismiss, a pretrial writ, at trial, on direct appeal, or in a collateral

proceeding.”64 Contrary to the Court’s contention, Smith did not say that limitations may be raised

for the first time on appeal,65 and the “collateral proceeding” to which Smith apparently referred was

a pretrial habeas request for bail.66 And Smith did not necessarily approve the holding in the bail

case. The Court simply stated that this past decision found the pleading to be “so fundamentally

defective that the trial court does not have jurisdiction and habeas relief should be granted,” but the

Court then supplied, in a footnote, a “but see” cite to Proctor.67 Moreover, the bail case, Ex parte

Dickerson, was a 1977 decision that predated both Proctor and the legislative amendments that

imposed the pretrial objection requirement for challenging a defect in the indictment.


         62
           Tita v. State, 267 S.W.3d 33, 38 (Tex. Crim. App. 2008) (citing TEX . CODE CRIM . PROC.
art. 21.02(6) (“The time mentioned must be some date anterior to the presentment of the indictment,
and not so remote that the prosecution of the offense is barred by limitation.”)).
         63
              TEX . CODE CRIM . PROC. art. 1.14(b); Studer v. State, 799 S.W.2d 263 (Tex. Crim. App.
1990).
         64
              Court’s op. at 16-17 (citing Smith, 178 S.W.3d at 801-02).
         65
              Smith, 178 S.W.3d at passim.
         66
         See id. at 802 (citing Ex parte Dickerson, 549 S.W.2d 202 (Tex. Crim. App. 1977)); See
Dickerson, supra.
         67
              Smith, 178 S.W.3d at 802 & n.19.
                                                                          PHILLIPS DISSENT — 14

        Further, in Posey v. State, we held that the failure to request a defense means that the defense

is not “law applicable to the case” and thus cannot be a basis for a jury-charge complaint.68 I believe

a substantive defense could be raised as a sufficiency-of-the evidence point without a prior objection

if the evidence proves the defense as a matter of law.69 But statute of limitations is not a substantive

defense. It is contained in the Code of Criminal Procedure, not the Penal Code, and it does not

negate criminal liability at the time the conduct was committed. Instead, statute of limitations is a

procedural defense, an “act of grace” by the legislature.70 Thus, it can be forfeited in its entirety, and

it was forfeited in this case.71

        I respectfully dissent.

Filed: June 15, 2011
Publish




        68
             966 S.W.2d 57 (Tex. Crim. App. 1998).
        69
           See Wright v. State, 981 S.W.2d 197, 203-04 (Tex. Crim. App. 1998) (Keller, J.,
dissenting).
        70
             Proctor, 967 S.W.2d at 843.
        71
          That does not mean, however, that appellant is without any possible remedy. If appellant
did not knowingly forgo the defense and his attorney had no valid strategy for failing to raise it, then
appellant may well have a valid claim of ineffective assistance of counsel.
