Darrel Demont FARRAR, Appellant, v. STATE of Texas, Appellee, 95 S.W.3d 648

Opinion W.G. ARNOT, III, Chief Justice. Appellant entered an open plea of guilty to the offense of unlawful possession of cocaine. The trial court accepted his plea of guilty and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 15 years. Prior to entering his guilty plea, appellant filed a motion to quash the indictment on the basis that the proceedings were barred by the applicable statute of limitations. Appellant complains of the trial court’s denial of the motion to quash the indictment in his sole issue on appeal. We affirm.

The underlying proceedings in this appeal are unusual. The indictment alleged that appellant committed the offense in question on or about August 8, 1996. The indictment was not returned by the grand jury until February of 2001. The parties acknowledge that the offense in question is subject to a three-year statute of limitations under TEX. CODE CRIM. PRO. ANN. art. 12.01(5) (Vernon Supp.2003). The State relies on TEX. CODE CRIM. PRO. ANN. art. 12.05(a) (Vernon 1977) to argue that the statute of limitations was tolled by appellant’s absence from the State during the applicable three-year period.

However, the indictment did not allege any facts invoking the tolling provision of

Article 12.05(a). The indictment was, therefore, limitations-barred on its face. Appellant filed a motion to quash the indictment. The trial court conducted a brief hearing on appellant’s motion to quash. The hearing commenced with the trial court taking judicial notice of the date of the offense alleged in the indictment and the date the indictment was returned. Despite the indictment’s obvious pleading defect, the trial court did not immediately grant appellant’s facial challenge of the indictment.

Instead, the trial court heard testimony concerning appellant’s whereabouts for the three-year period following the date of the offense. Appellant testified on direct examination that he resided in Texas from August of 1996 until October of 1999 when he moved out of state. On cross-examination, appellant admitted that he was arrested in another state in 1998. He further admitted to using an alias at the time of his arrest. He testified on redirect that the 1998 arrest occurred during a one-week trip that he made out of state.

No other evidence was presented at the hearing other than appellant’s testimony outlined above. The trial court denied appellant’s motion to quash the indictment based on its factual determination that appellant was absent from the state during the limitations period. Appellant subsequently entered an open plea of guilty to the offense. Prior to entering a finding of appellant’s guilt, the trial court heard testimony directed toward punishment. This testimony included evidence of appellant’s whereabouts during the applicable three-year period.

Appellant testified that he agreed to be a police informant immediately after his arrest. He received a death threat in 1996 with respect to a case in which he was supposed to testify. Appellant testified that he “made scarce from that point on.” He admitted on cross-examination that he left the state after being arrested for the offense at issue in this proceeding. The Court of Criminal Appeals recently adopted the following procedural framework for the presentation of a statute of limitations defense in Proctor v.

State, 967 S.W.2d 840, 844 (Tex.Cr.App.1998): Before trial, a defendant may assert the statute of limitations defense by filing a motion to dismiss under

Article 27.08(2) of the Texas Code of Criminal Procedure. At trial, the defendant may assert the defense by requesting a jury instruction on limitations if there is some evidence before the jury, from any source, that the prosecution is limitations-barred. If there is some such evidence and the defendant requests a jury instruction on the limitations defense, then the State must prove beyond a reasonable doubt that the prosecution is not limitations-barred.

Finally, the defendant may, either before trial or at trial, waive the statute of limitations defense. (Citation omitted) This appeal concerns a motion to quash an indictment filed under TEX. CODE CRIM. PRO. ANN. art. 27.08(2) (Vernon 1989) as recognized by Proctor. This provision permits a “substance” exception to an indictment or information when it appears from the face of the instrument that a prosecution for the offense is barred by time.

Article 27.08(2) permits the accused to attack the State’s defective indictment or information. The remedy for this pleading error is either the dismissal or amendment of the indictment or information. See TEX. CODE CRIM. PRO. ANN. arts. 28.06, 28.09, & 28.10 (Vernon 1989). Appellant filed his motion to quash under

Article 27.08(2), asserting a facial challenge to the indictment. However, his contentions were not limited to the State’s pleading error. Appellant also sought and obtained a pretrial determination of the facts underlying his limitations defense. He is essentially attacking the trial court’s pretrial determination of these facts in this appeal. The matters which can be reviewed on a pretrial basis with respect to indictments and informations are limited. State v. Rosenbaum, 910 S.W.2d 934 (Tex.Cr.App.1995)(opinion adopting dissent on grant of rehearing).

The Court of Criminal Appeals held in Rosenbaum that a trial court may not go behind the face of an indictment to conduct a “minitrial on the merits” of allegations made in a charging instrument. State v. Rosenbaum, supra at 947-48. “An indictment must be facially tested by itself under the law, as a pleading; it can neither be supported nor defeated as such by what evidence is introduced on trial.” State v. Rosenbaum, supra at 948.

The court further noted that “substance” exceptions to charging instruments “constitute facial attacks on the charging instrument itself without introduction, examination or consideration of supporting evidence.” State v. Rosen-baum, supra at 945. The Court of Criminal Appeals recently addressed the pretrial consideration of a limitations defense in Ex parte Tamez, 38 S.W.3d 159 (Tex.Cr.App.2001). The court recognized that a defendant is permitted to pursue a pretrial writ of habeas corpus when the State’s pleading, on its face, shows that the offense charged is barred by limitations.

Ex parte Tamez, supra at 160. The court then held that the reviewing court’s inquiry is limited to a consideration of the face of the pleading. Ex parte Tamez, supra at 160. The court in Proctor held that a limitations defense presented prior to trial is to be filed “under”

Article 27.08(2). Proctor v. State, supra at 844. The court’s use of the word “under” indicates that the rules and procedures for motions filed under

Article 27.08(2) to set aside indictments and informations are to be applied. As per the holding in Rosenbaum, appellant was not entitled to a pretrial determination of the facts surrounding the issues of limitations and tolling. Appellant cannot complain of an adverse ruling made by the trial court on a matter which the trial court was not permitted to consider. The trial court’s denial of his limitations defense based upon a pretrial assessment of the evidentiary facts surrounding the defense, therefore, did not constitute error. Appellant’s sole point of error is overruled.

The concurring opinion suggests that the State had the burden of proving beyond a reasonable doubt that appellant’s prosecution was not limitations barred. In light of our holding that appellant was not entitled to a pretrial determination of the facts surrounding his limitations defense, we disagree with the suggestion that the State had the burden of proof if such a hearing were'held. We agree that the State bears the burden of proof on a pretrial determination of an entrapment defense.

However, the defense of entrapment is an exception to the rale prohibiting pretrial factual determinations on the merits as noted by the court in Rosenbaum. State v. Rosenbaum, supra at 947; see TEX. CODE CRIM. PRO. ANN. art. 28.01(9) (Vernon 1989). “The entrapment defense is unique in that the Legislature deliberately provided it may be tested and determined at a pretrial hearing.” Taylor v. State, 886 S.W.2d 262, 265 (Tex.Cr.App.1994).

In the absence of a legislative provision for a pretrial determination of the facts supporting or defeating a limitations claim, we disagree with the assertion that the procedures for considering an entrapment defense are applicable to a limitations defense. The judgment of the trial court is affirmed. . Appellant argues that the testimony offered at the punishment hearing cannot be considered on appeal because it was not offered at the hearing on the motion to quash the indictment. We agree with the concurring opinion's determination that this evidence can be considered on appeal under Rachal v.

State, 917 S.W.2d 799, 809 (Tex.Cr.App.), cert. den’d, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 539 (1996). . Appellant’s sole issue on appeal reads: "The indictment is barred by the statute of limitations.” A cursory reading of this issue indicates that appellant is attacking the State’s pleading error. However, appellant's briefs indicate that he is attacking the trial court’s assessment of the proof offered regarding the tolling of limitations. Moreover, appellant waived any error with respect to language of the indictment.

Appellant and his trial counsel executed a written plea agreement in connection with his guilty plea which contained the following waiver: "I hereby waive my right to be tried upon an indictment returned by a grand jury; any and all defects, errors, or irregularities, whether of form or substance, in the charging instrument." (Emphasis added)