Proctor v. State , 1994 Tex. App. LEXIS 222 ( 1994 )

On Appellant’s Motion for Rehearing

Appellant argues that State v. Yount, 853 S.W.2d 6 (Tex.Cr.App.1993), cited in our original opinion, supports his contention that his limitations challenge was timely. We disagree.

In Yount, the defendant was indicted for three separate offenses of involuntary manslaughter. Upon the defendant’s request, the jury was charged not only on involuntary manslaughter but also the lesser included offense of driving while intoxicated. Defendant was convicted of the lesser included offense which was barred by the statute of limitations.

In the present case, appellant was indicted in a three-count indictment for the murder of Wing K. Lew, the aggravated robbery of Wing K. Lew by placing Yit Oi Lew in fear of imminent bodily injury and death, and the aggravated robbery of Wing K. Lew by shooting Wing K. Lew with a firearm. The indictment was presented on January 8,1988. The offenses were alleged to have occurred on January 29, 1982. Therefore, the indictment showed on its face that the alleged aggravated robbery counts were barred by the five-year statute of limitations. TEX. CODE CRIM.PRO.ANN. art. 12.01 (Vernon Supp.1994).

In Yount, the defendant had no way of knowing that he would receive his requested charge on the lesser included offense until the actual charge was given. The defendant could not object before trial. Therefore, the defendant’s objection in Yount was timely.

The defect in appellant’s indictment, that the count was barred by the statute of limitations, was apparent on the face of the indictment. This defect must be raised before trial. Appellant’s limitations challenge, made after the jury retired to deliberate, was not timely.

Appellant’s motion for rehearing is overruled.

February 3, 1994