¶1concurring.
¶2The majority states that limitations has been treated by this Court “much like what the present penal code defines as a ‘defense.’” Majority opinion at 597. Seizing upon this language, Judge McCormick announces that the majority must therefore be overruling this Court’s opinion in Lemell v. State, 915 S.W.2d 486 (Tex.Crim.App.1995), because that case treated limitations like an element. In his view, Lemelland the instant case cannot stand “side by side.” Concurring and dissenting opinion at 601 (McCormick, P.J.). Is limitation a defense or is it an element of the State’s prima facie case?
¶3The question assumes that limitations can be only one or the other; but this Court has assigned to limitations characteristics of both.
¶4On the one hand, there is a line of caselaw which treats limitations in some respects like an element of the State’s prima facie case. These cases hold that the State bears the burden of proving that the charged offense was committed within the limitations period, and further apply a sufficiency of the evidence review on appeal. See, e.g., Barnes v. State, 824 S.W.2d 560, 562 (Tex.Crim.App.1991)(evidence held insufficient where “reasonable jurors could not have concluded beyond a reasonable doubt that the offense was committed within the period of limitations”); Scott v. State, 534 S.W.2d 711, 712 (Tex.Crim.App.1976)(opinion on reh’g);
¶5On the other hand, there is caselaw which treats limitations in some respects like a defense.
¶6If Lemelland this case cannot, as Judge McCormick asserts, stand “side by side,” neither can prior caselaw. In order to adopt Judge McCormick’s view that limitations can only be, in all respects, either a defense or an element, we would have to overrule at least some caselaw, and/or deal with seemingly inconsistent provisions in the Code of Criminal Procedure and the Penal Code. See fti 3, supra. Such a course is not necessary as this Court is under no compulsion to label limitations as either exclusively a defense or an element. It is, as was suggested in State v. Turner, 898 S.W.2d 303, 308 (Tex.Crim.App.1995), simply sui generis.
¶7The issue presented is whether the defendant is entitled to a jury instruction on limi*600tations when the face of the indictment reflects that the offense was not committed within the limitation period, but the State proves uncontested facts of tolling to the trial court outside the presence of the jury. This is an issue of first impression. The majority says appellant was entitled to an instruction because the issue was raised by the face of the indictment and Lemellsuggests “it is an issue to be resolved by the jury.” Majority opinion at 597. Judge McCormick says a limitations issue is not raised “when the evidence is undisputed that the running of the limitations period was tolled regardless of whether the evidence is presented to the trial court or out of the presence of the jury.” Concurring and dissenting opinion at 602 (McCormick, P.J.).
¶8While limitations is sometimes “an issue to be resolved by the jury,” clearly that is not always the case.
¶9In determining the appropriateness of a jury instruction, it is helpful to consider what is required of the State in terms of proof. In the sufficiency of the evidence context, we have required the State to prove allegations of tolling made in the indictment with evidence before the jury. In Cooper v. State, supra, the indictment alleged commission of an offense that was barred by the applicable statute of limitation, but also pled facts that tolled the running of the statute. We cited the well-established principle that “it is necessary that the proof show that the offense was committed at such time as that the prosecution would not be barred by the statute of limitation.” Cooper, 527 S.W.2d at 565. We overturned the conviction on the ground that the evidence of tolling was not offered before the jury:
... the State offered no evidence to support the allegation tolling the statute of limitations ... No effort was made by the State to offer in evidence any prior indictment against appellant for this offense. No probative evidence was offered to the jury, the fact finder in the case, that a prior indictment charging appellant with the same offense was pending as alleged.
¶10Id. at 566. We further emphasized that “proof’ means evidence before the jury:
Likewise, statements made in a pretrial motion would not constitute proof where such statements did not go to the jury as evidence.
¶12Cooperstands for the proposition that allegations of tolling in an indictment must be *601supported by proof before the jury, at least in order to support a finding that the evidence is sufficient on appeal.
¶13Unless this Court is willing to disavow or qualify its holding in Cooper, supra, I am constrained to agree with the majority that when the indictment alleges an offense that was not committed within the limitation period, the State must offer evidence of tolling before the jury.
¶14With these comments, I join the opinion of the Court.
¶15. In Scott, on original submission we said that nothing had been presented for review by the late-filed briefs. On rehearing we agreed to address the sufficiency of the evidence on limitations based upon another case in which we had reviewed sufficiency of the evidence even though it was “unassigned error” because it was “one of the essential elements of the State’s burden of proof":
... appellant urges that our prior holding was erroneous in that we should have considered in the interest of justice the sufficiency of the evidence with regard to the State’s burden of proof to show that the prosecution in the instant case was not barred by the relevant statutes of limitation, [citations omitted]
¶16In Barbee v. State, Tex.Cr.App., 432 S.W.2d 78, 81, cert. denied, 395 U.S. 924, 89 S.Ct. 1779, 23 L.Ed.2d 241 (1969), this Court stated:
"While this court does not ordinarily consider the question of sufficiency of the evidence to support a conviction as unassigned enror under Sec. 13 of Art. 40.09, supra, we will do so, in view of appellant's claim that ... there was no evidence [upon one of the essential elements of the State's burden of proof].” (Emphasis in original)
¶17Scott, 534 S.W.2d at 712 (brackets in original).
¶18. This Court has on occasion loosely referred to limitations as a defense. See, e.g., Archer v. State, Sil S.W.2d 244 (Tex.Crim.App.1979)(panel op.)(referring to "complete defense” accruing *599under statute of limitations); Graves v. State, 795 S.W.2d 185, 186 (Tex.Crim.App.1990)(speaking of statute of limitations as "a defense accru[ing] to the defendant”); Dickerson v. State, 571 S.W.2d 942, 943 (Tex.Crim.App.1978)(noting that defendant did not "plead limitations as a defense”); but see Ex parte Dickerson, 549 S.W.2d 202, 203 (Tex.Crim.App.1977)(stating in pre-Studer case that "usually limitation is a matter which must be asserted as a defense in civil actions and in criminal prosecutions in some jurisdictions; however, our statute provides, as do those of many other jurisdictions, that an indictment must allege the offense was committed at a time not so remote that the prosecution of the offense is barred by limitations”); Donald v. State, 165 Tex.Crim. 252, 306 S.W.2d 360, 362 (1957)(citing with approval "well-established rule that the burden is on the state to show that the offense was committed within the period of limitation and the accused is not required to plead limitation as a defense”).
¶19. Apart from caselaw, the Code of Criminal Procedure tends to treat limitations more like an element than a defense, in that limitations is described in “systemic" terms. Article 12.01 is prohibitory in tone, providing that "felony indictments may be presented within these [defined] limits, and not afterward." Tex.Code Crim. Proc. Ann. art. 12.01 (emphasis added). Further, if it is made known to the trial court that the charged offense is limitations barred and another indictment could not be presented within the limitations period, the defendant "shall be fully discharged.” Tex.Code Crim. Proc. Ann. art. 28.06. Moreover, limitations is absent from the Penal Code’s list of defenses.
¶20. Judge McCormick’s opinion is lacking in cited authority. Judge McCormick refers to treating limitations as a defense "which is how this Court has treated it over the years.” Concurring and dissenting opinion at 601 (McCormick, P.J.). He cites two cases in support thereof, Morin, supra, and Gray v. State, 68 S.W. 799 (1902), and he fails to address cases such as Scott, supra.See fn 1, supra. Morin and Graydo not support his position. In Morin, the indictment alleged tolling and the evidence was consistent therewith. No jury instruction on limitations was requested and indeed the defendant was not entitled to one. Accordingly, we said, "It is not error to fail to charge on limitation if there is no issue or question of limitation raised by the testimony.” Morin is not inconsistent with the majority’s opinion and does not support Judge McCormick’s position. In Gray, the court instructed the juiy that , unless it found the charged act occurred within one year of a certain date, it must acquit the defendant. The "testimony before the jury showed the offense was committed” within the limitations period and "there being no testimony to controvert the state’s evidence on this question” the court’s instructions were proper. The defendant’s only complaint on appeal was that the instructions should have been phrased in the affirmative, rather than in the negative. Graydoes not support Judge McCormick’s proposition. Judge McCormick also urges the Court to "expressly reaffirm this Court’s earlier holdings on how limitations should be raised and litigated in the trial court.” Concurring and dissenting opinion at 602 (McCormick, P.J). He fails to cite and discuss the "earlier holdings” that should be "reaffirmed.”
¶21*600No authority is cited in support of Judge McCormick's assertion that in order to raise limitations as a sufficiency issue on appeal, “a defendant should stand up at the guilt-innocence phase of trial and claim he is entitled to have the prosecution dismissed.” Concurring and dissenting opinion at 604. Indeed, there is none. Moreover, if such action has been required or even suggested, any mention of it is missing from this Court’s treatment of limitations issues raised as sufficiency claims in earlier cases. See Scott, supra;Cooper, supra;Carter, supra;Mulvehill, supra.
¶22. Contrary to the implication in the majority’s opinion, Lemelldid nothing to change the face of the law in this regard. The fact that the State has to prove limitations and its proof is subject to a sufficiency review on appeal is not new with Lemell. Lemell simply followed prior caselaw. See, e.g., Barnes, 824 S.W.2d at 562 (evidence held insufficient where "reasonable jurors could not have concluded beyond a reasonable doubt that the offense was committed within the period of limitations”); Scott, 534 S.W.2d at 712 (opinion on reh'gXagreeing to address "sufficiency of the evidence with regard to the State’s burden of proof to show that the prosecution in the instant case was not barred by the relevant statutes of limitation” even though it was not briefed based on previous case where we addressed sufficiency of evidence on element of offense despite fact that it was "unassigned error”).
¶23In Lemell, limitations was a contested issue since it was raised by the face of the indictment and the State had not put on any evidence of tolling, before the jury or otherwise. Evidence of tolling was not proffered by the State until a hearing during the jury’s deliberations at punishment. We made no indication in Lemellas to the outcome of a sufficiency review, but simply held that the appellant was entitled to one and remanded to the court of appeals to conduct such review. However, "proof” for purposes of a sufficiency review appears to include only evidence before the jury. Cooper, 527 S.W.2d at 566.
¶24. Judge McCormick says Coopermerely stands for the general rule that the State has to prove what it alleges in the indictment. As stated above, in Cooper, the Court set forth the well-established principle that "it is necessary that the proof show that the offense was committed at such time as that the prosecution would not be barred by the statute of limitation.” (emphasis added). The Court then went on to emphasize that “proof" means evidence before the jury.
¶25. Indictment allegations stating a date that is not barred by limitations would not call for a limitations instruction. Indictment allegations stating a date that is barred would raise an issue so as to call for a jury instruction unless the State put on uncontested evidence of tolling before the jury, in which case no instruction would be required. Likewise, allegations of tolling would raise an issue that would call for a jury instruction, unless the State proffered uncontested evidence of tolling before the jury.
¶26. Presumably, since Ae State is not bound by Ae date alleged in Ae indictment, Ae State could also simply put on evidence before Ae jury that Ae offense was committed within Ae limitation period.
¶27. Admittedly, Ais holding in some ways seems odd. For instance, if Ae facts of tolling had been presented to the jury in this case, appellant would not have been entitled to an instruction! See Concurring and dissenting opinion at 603 (McCormick, P.J.); see also Morin, supra. But, it would be even stranger to hold Aat no instruction was required here based on Ae evidence presented outside Ae presence of Ae jury, while if appellant had challenged Ae sufficiency of the evidence in Ais case he would be entitled to an acquittal because Ae reviewing court would be limited to consider only evidence presented before Ae jury. See Cooper, supra.