Aaron Moss v. State ( 1997 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

---

NO. 03-95-00495-CR

---

Aaron Moss, Appellant

v.

The State of Texas, Appellee

---

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0951289, HONORABLE JON N. WISSER, JUDGE PRESIDING

---

PER CURIAM

A jury found appellant, Aaron Moss, guilty of aggravated sexual assault of a child. Act of May 26, 1987, 70th Leg., R.S., ch. 573, § 1, 1987 Tex. Gen. Laws 2275, amended by Act of July 18, 1987, 70th Leg., 2d C.S., ch. 16, § 1, 1987 Tex. Gen. Laws 80 (Tex. Penal Code Ann. § 22.021, since amended). The jury also found appellant guilty of indecency with a child by contact. Act of May 29, 1987, 70th Leg., R.S., ch. 1028, § 1, 1987 Tex. Gen. Laws 3474 (Tex. Penal Code Ann. § 21.11, since amended). The jury assessed punishment for the aggravated sexual assault at 14 years' confinement and for the indecency by contact at 10 years' confinement with a recommendation of community supervision. We will affirm the trial-court judgment.

By two points of error, appellant complains that the trial court erroneously omitted an instruction to the jury and that the evidence was insufficient to show that the dates of the offenses were within the statutory limitations periods. By point of error two, appellant contends that the evidence is insufficient to show that the offenses occurred within the applicable statutes of limitations. Appellant contends that based on the charge given and because the victim could not recall the dates of the offenses, the State was required to provide evidence from the witness stand about the date the indictment was returned. Appellant argues that in the absence of such there was insufficient evidence to show the offenses were committed within the limitations periods.

In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981).

A charge of aggravated sexual assault and indecency carry a limitations period of ten years. Tex. Code Crim. Proc. Ann. arts. 12.01(2)(D), 12.03(d) (West Supp. 1997). The court's charge instructed the jury in pertinent part as follows:

You are further charged as a part of the law in this case that the State is not required to prove the exact date alleged in the indictment but may prove the offense, if any, to have been committed at any time prior to the presentment of the indictment so long as said offense, if any, occurred within 10 years of the date of the presentment of the indictment; you are further instructed that the day the indictment was presented and the day of the offense, if any, occurred, shall not be computed with the 10 years limitation period.

You are further instructed as a part of the law in this case that the indictment against the defendant is not evidence in the case, and that the true and sole use of the indictment is to charge the offense, and to inform the defendant of the offense alleged against him. The reading of the indictment to the jury in the statement of the case of the State against the defendant cannot be considered as a fact or circumstance against the defendant in your deliberations.

You are charged that it is only from the witness stand that the jury is permitted to receive evidence regarding the case or any witness therein, and no juror is permitted to communicate to any other juror anything he may have heard regarding the case or any witness therein, from any source other than the witness stand.

A statute of limitations defense must be raised by the defendant in a timely manner in the trial court or it is waived. Lemell v. State, 915 S.W.2d 486, 489 (Tex. Crim. App. 1995). Appellant failed to assert the statute of limitations as a defense, to request an instruction on the limitations defense, and to otherwise raise the issue in the trial court. Thus, appellant waived the defense, and it was not necessary for the State to prove the date the indictment was returned in order to establish appellant's guilt. Zinger v. State, 899 S.W.2d 423, 433 (Tex. App.--Austin 1995), rev'd on other grounds, 932 S.W.2d 511 (Tex. Crim. App. 1996); Decker v. State, 894 S.W.2d 475, 480 (Tex. App.--Austin 1995, pet. ref'd).

Even assuming that appellant had raised a limitations defense, the date of filing noted on the indictment is sufficient evidence of the date the indictment was returned. Zinger, 899 S.W.2d at 433. The trial court properly charged the jury that the offenses alleged carried ten-year statutes of limitations. The indictment in this case was marked filed March 10, 1995. The offense dates alleged were "on or about August 31, 1994." The trial began in July 1995. Testimony placed the dates of the incidents as occurring sometime between the victim's birthday, July 19, and Halloween, 1994.

We hold that a reasonable fact finder could find beyond a reasonable doubt that the dates of the offenses were within the statutory limitations periods. We overrule appellant's second point of error.

By point of error one, appellant contends that the trial court reversibly erred by failing to include an instruction to the jury in accordance with Texas Rule of Criminal Evidence 201(g) regarding judicial notice. Pursuant to Rule 201(g), "the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed." As part of its proof in the case, the State asked the trial court to take judicial notice that the indictment was returned on March 10, 1995. Appellant made no objection to the trial court's failure to include the instruction. Appellant concedes that he must now show that he suffered egregious harm from the trial court's failure to include the 201(g) instruction. Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). Appellant contends that he suffered egregious harm because the jury was not provided with any guidance about what to do with the judicially noticed fact about the date of the return of the indictment. We do not agree with appellant that he was egregiously harmed because of the omission in the jury charge.

Egregious harm is not shown when the omission in the charge concerns a defensive theory not raised by appellant. Zinger, 899 S.W.2d at 434. Because the statute of limitations was not raised as a defense or otherwise made an issue at trial, it was unnecessary for either party to prove the date of the indictment's return. Decker, 894 S.W.2d at 480. The court judicially noticed the date of return, that date was not an adjudicative fact in this cause, and Rule 201(g) did not apply. Id. We overrule point of error one.

We affirm the judgment of conviction.

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: March 27, 1997

Do Not Publish

ther instructed as a part of the law in this case that the indictment against the defendant is not evidence in the case, and that the true and sole use of the indictment is to charge the offense, and to inform the defendant of the offense alleged against him. The reading of the indictment to the jury in the statement of the case of th