State v. Turner ( 1993 )

MURPHY, Justice,

dissenting.

I respectfully dissent. In this Court’s panel decision in Skero v. State, 866 S.W.2d 336 (Tex.App.—Houston [14th Dist.], 1993), that panel obviously misquoted Tex.Code Crim. Proc.Ann. art. 1.14(b) (Vernon Supp.1993). The opinion correctly holds that where no objection is made before trial that the statute of limitations had run at the time the indictment was presented, the appellant waives his right to complain for the first time on appeal. However, the panel in citing art. 1.14(b) left out vital language which I believe is controlling in the case before us. The panel stated:

The Code of Criminal Procedure provides that if a defendant does not object to a defect, either of form or substance, in an indictment prior to the trial on the merits commencing, he may not raise the issue on appeal.

They should have stated:

The Code of Criminal Procedure provides that if a defendant does not object to a defect, either of form or substance, in an indictment, prior to the date on which the trial on the merits commences, he may not raise the issue on appeal, (emphasis added).

Here, appellant, on the day of trial moved to dismiss the indictment because it was barred by limitations. I would hold art. 1.14(b) applies and that it means what it says; that a defect, either in form or substance, must be objected to prior to the date on which the trial on the merits commences or the issue can not be raised on appeal.