Def Atty has filed a motion to quash saying the idictment is filed after the 10 yr statute of limitations. In Agg Sex Assault cases, the applicable limitation is 10 yrs from the 18th birthday. Does this have to be alleged in the indictment or does it appear to be clear on the face when indictment alleges victim as younger than 14 and indictment is returned within 12 years.

Your indictment appears to allege facts which implicitly show that the indictment was timely returned, i.e. that on date of offense victim was less than 14 years of age and less than than 14 years passed between the alleged date of the offense and the date of return of the indictment. Can it be said that merely because you do not allege the date of the victim's 18th birthday that "it appears from the face thereof that a prosecution for the offense is barred by a lapse of time" as would be required to sustain an exception under 27.08(2)? I would say "no". But, which side has the burden is not entirely clear. Farrar, 95 S.W.3d 648. Justice Wright thinks it is on the State despite the wording that seems to place it on the Defendant. And if it is on the State, then maybe the facts which establish when the limitations period commences should be alleged (since the court must look solely to the allegations to determine the issue). I would argue nothing on the face of your indictment shows that it was presented more than 10 years from the 18th birthday of the victim and therefore it is sufficient, as is. Of course, it would also be a simple matter to amend the indictment to make this crystal clear.

If you charge sexual assault of a child or aggravated sexual assault of a child you get the 10 years from the 18th birthday SOL. CCP 12.01(5)(B). That means you'd always have at least 11 years and 1 day to file from the time of the offense in a sexual assault of a child. You'd always have 14 years plus 1 day in the case of agg. sexual assault of a child younger than 14. Since he has to show on the face of the indictment that the SOL is violated, CCP 27.08(2), he should lose if you are in that window.

Unless you are alleging that part of the SOL is tolled, I don't think you have any pleading duties regarding the SOL. See Dix & Dawson 41 Texas Practice sec. 20.348, 20.349.

[This message was edited by david curl on 12-12-03 at .]