Cecil John Holland v. The State of Texas--Appeal from Crim Dist Ct 2 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-127-CR

CECIL JOHN HOLLAND,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court #2

Dallas County, Texas

Trial Court # F92-33601-HI

O P I N I O N

Appellant Cecil John Holland appeals from his conviction for aggravated sexual assault, for which he was sentenced to 11 years in the Texas Department of Criminal Justice, Institutional Division.

Appellant was convicted of aggravated sexual assault of a child, a first degree felony, which arose out of an indictment filed on March 5, 1992. The offense was alleged to have occurred on or about the 13th day of March 1984.

Trial was to a jury which found Appellant guilty of the offense as charged in the indictment, and punishment was assessed at 11 years' confinement in prison.

Appellant appeals on two points of error, both contending that the trial court erred in not granting Appellant's amended motion for rehearing of his second amended motion to quash the indictment due to plea in bar running of the statute of limitations. Appellant contends that the statute in effect on the date of the offense, March 13, 1984, was "Rape of a Child" which had a statute of limitations of three years.

Appellant is incorrect. On June 19, 1983, the Legislature approved an extensive revision of the criminal laws relating to sex offenses. Upon the effective date of the revisions, the offense of Rape, Aggravated Rape, Rape of a Child, Sexual Abuse, Aggravated Sexual Abuse, and Sexual Abuse of a Child, contained in chapter 21 of the Texas Penal Code Annotated, were repealed and redefined as assaultive offenses in chapter 22 of the Penal Code. The effective date of these "new" offenses was September 1, 1983. See Acts 1983, 68th Leg., p. 5312-5315, 5321, ch. 977, effective September 1, 1983. While offenses committed prior to September 1, 1983, could still be prosecuted under the prior statute, offenses committed after September 1, 1983, would be prosecuted under the new statute, i.e., the offense in chapter 22 of the Penal Code. Lindsey v. State, 760 S.W.2d 649, 653 (Tex. Crim. App. 1988).

The statute of limitations for the newly created sexual offenses was five years. Acts 1983, 68th Leg., p. 413, 414, ch. 85, effective September 1, 1983, Acts 68th Leg., p. 5317, 5321, andLindsey, supra. Therefore, on March 13, 1984, the date of the offense, the statute of limitations was five years.

Prior to the expiration of the five-year-limitation time (which would have been on March 13, 1989), article 12.01 of the Texas Code of Criminal Procedure was amended and the statute of limitations was increased for sexual assault under section 17.011(A)(2) to ten years under article 12.01(2)(D). Acts 1987, 70th Leg., p. 2591, ch. 716, sec. 1, effective September 1, 1987. The statute limitations for aggravated sexual assault under section 22.021(a) is the same as the primary offense under article 12.03, thus it also became ten years. The statute of limitations for sexual assault of a child under section 27.011(a)(2) and aggravated sexual assault under section 27.021(a) has remained at ten years since September 1987.

The Legislature is permitted to extend the statute of limitations for prosecution of a criminal offense after the offense has been committed and before the expiration of the limitations period in effect at the time of the commission of the offense. Archer v. State, 577 S.W.2d 244 (Tex. Crim. App. 1979).

The amendment of the statute of limitations here occurred prior to the expiration of the limitation period of the statute being amended. Thus, at no time did the instant case become barred by the statute of limitations. The indictment was presented March 5, 1992, well within the ten-year statute of limitations, ten years from the date of the offense would have been March 13, 1994.

The trial court did not err in denying Appellant's motion to quash the indictment on the ground that the statute of limitations had run.

Both of Appellant's points are overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed February 5, 1997

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