CCA Finds Constitutional Ex Post Facto Violation That Was Completely Missed at the Trial Level

Here’s an excerpt from the Texas Court of Criminal Appeals’ majority (5-3) opinion in Phillips v. State, which dealt with the Ex Post Facto application of a statute of limitations law for sexual offenses:

“Appellant was convicted of twelve counts of sexual offenses against his daughter that occurred in 1982 and 1983. But prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. No one–not the trial judge, the prosecutor, the defense, or the court of appeals–recognized this constitutional ex post facto violation. Because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses, we granted appellant’s petition for discretionary review. Although the State Prosecuting Attorney (SPA) agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in the trial court. We reaffirm our prior opinions that have stated that an absolute statute-of-limitations bar is not forfeited by the failure to raise it in the trial court. We reverse the court of appeals, which held that appellant’s prosecution was not barred.”

Presiding Judge Keller dissented, joined by Judges Keasler and Hervey.  They would hold that the trial judge’s ex post facto application of the law may violate due process, but that the majority got it wrong because the prohibition on ex post facto laws only applies to the legislature.