Floyd v. State

¶1OPINION

¶2delivered the opinion of the Court,

¶3Appellant was separately indicted with violating the Texas Securities Act.1Floyd v. State, 914 S.W.2d 656, 657 (Tex.App.-Texarkana 1996)(Cause No. 06-95-00069-CR); Floyd v. State, No. 06-95-00070-CR, slip op. (Tex.App.-Texarkana, delivered January 5, 1996)(not published). Appellant entered into a plea bargain agreement in each case where he pled nolo contendere to the charges and agreed to a term of probation for ten years and a fine of $300.00. The trial court found sufficient evidence to substantiate appellant’s guilt, deferred an adjudication of guilt and placed appellant on community supervision for ten years with a fine of $800.00 in both cases.

¶4Appellant complained for the first time in his Amended Motion for New Trial that the evidence was insufficient to support the trial court’s finding of guilt because the prosecution was barred by the statute of limitations. *274Specifically, appellant alleges that the State failed to prove the offenses occurred within the statutory five year period. The Court of Appeals relied upon this Court’s holding in Lemell v. State, 915 S.W.2d 486 (Tex.Cr.App.1995), and agreed with appellant that limitations had run barring prosecution. In Le-mell, this Court held that the failure timely to object to the indictment waived a claim of a limitations defect in the indictment; however, it did not waive a claim that the evidence was insufficient to support the conviction because it showed that the statue of limitations had expired. Id. at 489-90. Lemellhas been overruled by Proctor v. State, 967 S.W.2d 840 (Tex.Cr.App.1998).

¶5In Proctor, we held that a statute of limitations claim is a defense and that the defendant will forfeit this defense if it is not asserted at or before guilt/innocence stage of trial. Id. at 844. In this case, appellant failed to raise the statute of limitations defense before trial or during the presentation of evidence on his pleas of nolo contendere. Therefore, appellant forfeited this defense under Proctor.

¶6Accordingly, the Court of Appeals erred in ordering the trial court to acquit. The decisions of the Court of Appeals are reversed and these cases are remanded to that court to address appellant’s remaining points of error.