EX PARTE Eric Michael HEILMAN, Appellee

would occur if a case had to be retried

because of an error at the trial level.5 stay proceedings

The State’s motion to

is denied.

Alcala, J., concurs.

EX PARTE Eric Michael

HEILMAN, Appellee

NO. PD-1591-13 Appeals

Court of Criminal Texas. March

DELIVERED: resulting 5. And a remand serving "[p]ost-disposition from an erroneous disqualifica- appellate justice failure to recuse an appellate judges would be tion of has been rare in the a rare event. Strong years See Tesco Am. Inc. v. required Texas Constitution has Indus., (Tex.2006) (ob- it”). Schneider, &

Stanley G. Schneider Houston, P.C., McKinney, Eric Michael for Heilman. Messinger,

John R. Assistant State McMinn, Attorney, Prosecuting Lisa C. Austin, Attorney, of Tex- State’s for State as.

OPINION KEASLER, J., opinion delivered the Court, KELLER, P.J., in which YEARY, HERVEY, RICHARDSON, NEWELL, JJ., joined.

Eric pleaded guilty Heilman to misde- tampering meanor with governmental two-year record the relevant after expired. of limitations had In return for not to plea, agreed Heilman’s State pursue state-jail felony tam- indictment pering governmental record. In an corpus, a writ of habeas application for juris- court’s challenged Heilman trial time- accept plea diction to the offense, “pure law” arguing that his abso- category-one defense is right lute under Marin v. State.1 The waiver stating: hereby “I waive all statute relief, granted habeas court and the court of limitations.” Heilman signed also a De- affirmed. appeals Adjudication We hold that ferred Order stating: “DE- right category-three at issue is a forfeita- FENSE WAIVES STATUTE LIMITA- ble reverse judgment of the TIONS PER JUDGE FLORES.” On court of appeals. June after the agreed-upon six months, the trial court terminated Heil- man’s adjudication deferred and dismissed History I. Facts and Procedural the information. In October serving Heilman was Heilman subsequently filed an applica- as an officer with the Beaumont Police tion for a writ of corpus, habeas citing as a Department. Along with another officer collateral consequence his inability to ob- informant, and a confidential Heilman took peace tain a officer’s license alleging and part in a failed undercover sting narcotics involuntary an plea and ineffective assis- targeting a suspected drug dealer. Al- tance of counsel. sought He also findings though occurred, no transaction when the of fact and conclusions of law that leave, suspect began to pursued Heilman original trial court jurisdiction lacked un- him, and arrested seizing large cash and a Phillips der v. State3 both accept amount of cocaine. But when Heilman plea December 2010 and to sentence him drafted his probable-cause affidavit on Oc- to deferred adjudication after two-year 13, 2008, tober he failed to mention either statute of limitations’ expiration in October operation undercover or his confiden- judge The habeas vacated the trial tial informant. proceedings Heilman, court’s against con- When that veracity affidavit’s was later . cluding jurisdiction. it lacked The court of challenged, a attorney pro district tem be- affirmed, appeals holding that the “charg- gan grand-jury investigation of Heilman. ing instrument on its face established that During investigation, entire no indict- the statute of prohibited limitations ment, information, complaint or criminal State from prosecuting the defendant.”4 was ever against filed Heilman. Never- theless, 22, 2010, on December Heilman Analysis II. pleaded guilty on a misdemeanor informa- tion tampering with a governmental rec- The circumstances of this case force us (1) ord in return for the State agreeing to to reconsider the nature of a statute-of- forgo indictment on state-jail felony exactly defense and what (2) offense and oppose early “[ojften protects. termi- it And although it is nation one-year of his deferred-adjudica- better to be right,” consistent than we tion sentence after six months. Because precedent overrule when the reasons for Heilman’s offense of tampering gov- with a doing “weighty so are enough,” including ernmental record —a A Class misdemean- when precedent was “flawed from the or—carried two-year statute of limi- produces “unjust” outset” and results “that tations,2 Heilman signed also place written unnecessary burdens on the sys- 1. 851 S.W.2d (Tex.Crim.App.1993), 3. 362 (Tex.Crim.App.2011). S.W.3d 606 grounds by overruled on other Cain v. (Tex.Crim.App.1997). 947 S.W.2d 262 Heilman, 4. State v. 505-508 2013) (Tex.App.-Beaumont (citing Phillips, 12.02(a) 2. See Tex.Code Crim Proc. Ann. art. 617-18). 362 S.W.3d at (West 2012). State, we originally Proctor v. reliance on Under tem.”5 Heilman’s defense us with such a situation. held that a statute-of-limitations presents State if not asserted at or before “is forfeited Marin n Three Categories A. trial,” thereby guilt/innocence stage category.10 it in Marin's third placing State, we construct In Mann v. we recently Yet more categorize three-part framework ed limita- distinguished types between two criminal-justice system: rights of our (1) those that are “based tions defenses: prohibi- requirements 1. “absolute (2) “pure those that are on facts” tions”; type merely law.”11 the first Whereas litigants which must be “rights to a limitations factual de- “gives rise system unless ex- implemented requires develop- it factual fense” because waived”; pressly instrument, the beyond charging ment which are to be “rights litigants 3. on the face of the instru- appears second upon request.”6 implemented rise to a stat- “gives ment and therefore that constitutes a ute-of-limitations bar” “are category-one rights that explained We jurisdictional defect.12 We held partisan even without re- to be observed Marin n while Proctor —and therefore “lawfully be avoided quest” and cannot apply to fac- category third partisan Category- consent.”7 even —continued defenses, apply it did not tual limitations however, by can be waived rights, two Therefore, a pure to those that are law.13 litigant “is never deemed to right, but only a factual limi- defendant could forfeit says in he so have done so fact unless it at by failing tations defense to assert plainly, freely, intelligently, sometimes pure-law But a limitations de- trial.14 writing always in on the record.”8 defect, fense, could not jurisdictional as a Finally, category-three right can be for- and could be raised for the litigant feited “for failure insist be forfeited motion, by objection, request, appeal pro- it or time or in a collateral first some other behavior calculated to exercise ceeding.15 right comprehensible a manner Phillips’s distinction C.Bases usu- system’s impartial representative, judge.”9 trial ally distinction, relied making In that we prohibitions primarily on the constitutional Phillips B. v. distinction be- State ’s against post ex laws—found both pure-law tween factual and facto and Texas constitutions16—and defenses the federal Lewis, parte 11. 362 S.W.3d at 617. 5. See Ex 219 S.W.3d (Tex.Crim.App.2007). 12. Id. Marin,

6. 851 S.W.2d at 279. 13. Id.

7. Id. at 280. 14. Id.

8. Id. I, (‘‘No Id. at 279. § cl. 1 state Const, 16. U.S. art. Law.”); post pass any ... ... ex shall facto I, ("No post § 16 ... ex Const, art. 10. See Proctor Tex. facto made.”). ... (Tex.Crim.App.1998). law shall be reasoning Ieppert our v. State.17 In that previously revived a time-barred of- case, prohibition Clause,” we clarified that fense violated the Ex Post Facto against post actually ex laws is not an making thus a pure-law limitations defense facto right, categorical individual but instead “a a category-one right through application of prohibition people directed to their Therefore, the Ex Post Facto Clause.24 government” that cannot be waived “either once the statute of limitations on Phillips’s individually collectively.”18 Citing expired, forward, offenses day “from that language, in Phillips we held the prosecution of all twelve counts was forev- “right to be free from post laws or er absolutely barred.”25 facto post application the ex of a law” ais facto D. Our decision to overrule category-one right.19 Marin absolute v. State analysis Our then cited the We now Phillips’s conclude that Supreme Stogner Court’s v. California20 distinction between factual and pure-law decision to resolve the collision between error, limitations defenses was in at least prohibition the constitutional ex in circumstances lacking any legislative ex (a category-one right Iep- absolute under Only violation. legislature pert) and a statute-of-limitations defense can violate either the federal or state Ex (originally category-three forfeitable Post Facto Clause because—as we held Proctor).21 Stogner, under Ortiz State and now reaffirm —both are Supreme Court held that a state statute “directed at the Legislature, not allowing prosecutions time-barred for sex- Indeed, courts.”26 as the seminal case on related if “begun child abuse within one the Ex Post Facto Clause—Calder v. year report” of the victim’s violated the Ex declared, the “plain and obvious Bull — Post Facto Clause.22 We noted the Su- meaning and intention of the prohibition” preme invocation of the assurances Court’s is that Legislatures “the of the several provides the State through a statute of states, laws, shall pass not after a fact limitations; namely that one “has become citizen, done by subject, or which shall from pursuit,” safe its and that the State fact, have relation to such punish and shall “play by will its own give rules” and “fair him for having done it.”27 warning” preserve exculpatory evi- assurances, Citing dence.23 those we held Our Ortiz also sought to limit in that a “facially retroactive Ieppert, law effect of the case on which so (Tex.Crim.App.1995). 17. 908 S.W.2d 217 24. See id.

18. Id. at 220. 25. Id. at 616. Phillips, 19. 362 S.W.3d at 611-12. 79, (Tex.Crim. 26. v. 91 Ortiz App.2002). Phillips, See also 362 S.W.3d at 607, 2446, 20. 539 U.S. 123 S.Ct. 156 L.Ed.2d (Keller, P.J., dissenting). (2003). Bull, 390, (3 Dall.) 386, 27. Calder v. 3 U.S. 21. 362 S.W.3d at 614. (1798). L.Ed. 648 See also Marks v. United States, 188, 191, 430 U.S. 97 S.Ct. Stogner, 539 U.S. at 123 S.Ct. 2446 (1977) ("The (West L.Ed.2d 260 Ex (citing Post Facto 803(g) § Cal.Penal Code Ann. powers Clause is a limitation of the Supp.2003)). Legislature, and does not of its own force (citing Stogner, apply 362 S.W.3d at 614 government.”) to the Judicial Branch of 2446). (citations omitted). 539 U.S. at 123 S.Ct. reasoning operating ’s relied. We defense in statute-of-limitations much Ieppert ap- not “we did explained conjunction with a violation Ex Post between pear appreciate Clause, distinction” provided guidance Facto it no as to and the due to Bouie legislature courts , whether a statute-of-limitations defense n due process prohibi- City Columbia forfeitable, standing alone waiva- must “achieving, against judiciary tion ble, or absolute direct our Ma- that would statute, construction of a the exact through stray analysis and us to from require rin consequence prohibit- that would be same Proctor. Legis- ed clause if the the ex the legisla- But we need not hold that had so acted.”28 We noted that lature acting only through ture itself can Rogers v. Tennessee had Supreme Court the Ex In violate Post Facto Clause.32 reasoning dicta—clari- since declared States, Peugh Supreme a recent United fying that Bouie turned on a due decision Court that we did have the process violation—and held the federal Ex benefit of when we decided Phil- reviewing inapplicable Facto Clause to the Post trial lips, judge’s the Court held that a courts, citing the institutional “important application Sentencing the Federal legis- contextual differences between hand, one law the time of a lating, on the and common Guidelines effect at defen- decisionmaking, on the other.”29 trial those in effect at the dant’s instead of time of the offenses defendant’s violated concluding analysis Stogner, its Ex Post In rejecting Facto Clause.33 struck Supreme Court down California’s government’s that the argument guide- “retroactively it statute because withdraws just among were lines one number of defense after it complete that a could sources district court use dur- attached, already and it does so has sentencing, than a ing “policy no different that allows the State to withdraw manner Supreme paper,” the noted the stat- respect at will this defense utory consequences either following from already But individuals identified.”30 deviating guidelines.34 from the A dis- here, could not the time- pursue the State guidelines trict court had to to consult “at will.” There was no barred offense error” procedural avoid “reversible enabling like California’s it to do act, an finding risked abuse-of-discretion on legislative Because there was no so. if it far.35 appeal there was no ex violation.31 And deviated too But if a although Stogner guidelines, clarified nature of court district followed Ortiz, City (citing believing ap- 93 S.W.3d at v. in 28. 91 Bouie taken that the 1997 statute Columbia, 347, 353, legislature plied. pass The an U.S. 84 S.Ct. did not 1697, law.”). (1964)). 12 L.Ed.2d 894 - States, See, Tennessee, (citing Rogers e.g., Peugh 32. v. United U.S. 29. Id. v. 532 U.S. -, 2085, 451, 460, 121 S.Ct. 133 S.Ct. 149 L.Ed.2d L.Ed.2d 84 (2013) (plurality stating coverage "the (2001)). the Ex Post Clause is not Facto limited acts”). legislative Stogner, 30. 539 U.S. at 123 S.Ct. 2446. Id. at 2088. Ortiz, 33. 93 S.W.3d at See also 31. 91. (Keller, P.J., dissenting) 362 S.W.3d at 624 (referencing provisions ("[T]he 34. Id. at 2087 various savings provision prevented the 1997 3553). § of 18 U.S.C. appellant's applying amendments from sex offenses that became barred in 1993. The parties simply trial mis- and the court were 35. Id. violation, legislative origin alleged the sen- of the appeals presume could

court Instead, also cited and here there was none. tence reasonable.36 Jones, recognized judge’s acceptance v. that a trial Gamer of Heilman’s time- plea originated board could—but refused to barred from parole plea state Heilman’s negotiations find that it did—violate the Ex Post Facto with the along with his by changing multiple any Clause its waivers of rules.37 limitations defense. Peugh But did the Su- point at no And for plea agreement Heilman’s even refer- preme Court overturn —or stand, we must first overturn refusal to extend the ence—its earlier In Phillips, State. we reasoned that once to the scope of the Ex Post Facto Clause charging instrument showed that the Tennessee, Rogers courts in which solidi- statute of limitations on the twelve counts holding our while the clause’s fies against Phillips of sexual offenses leveled agencies to executive ex- scope can extend forward, expired, had “from that day pros legislative power, it still ercising delegated ecution of all twelve counts was forever exercising does not extend to courts their absolutely barred.”42 reli Phillips’s plea bargain.38 inherent power accept legally significant ance on a distinction be reasoning Thus the Supreme Court’s pure-law tween and factual limitations de Peugh reaffirms our Ortiz fenses determined that result and caused the Ex Post Facto Clause is “directed at stray us to from It was not Proctor.43 Legislature, not the courts.”39 analytical step dicta.44 It was an to reach Therefore, the result. because the infor Therefore, assessing a claim against mation Heilman showed that Clause, Ex Post Facto we based statute of limitations on the misdemeanor beyond directly look the actor that is com pleaded offense to which he had run two mitting alleged leg violation for some months before his plea, prosecution on that origin alleged islative violation— already offense was “forever and absolute enabling such as the statutes of either the ly Phillips.45 barred” under Sentencing United States Commission Peugh40 parole Although prosecution state-jail or the state board in Garn felony A legislature escape possi- er.41 cannot offense would still have been point, strictures of either the Texas or federal Ex ble at that under that would delegation. Post Facto mere not have revived of the misde- Clause point analyze rights But a defendant must be able to to a meanor offense. When we Ortiz, at 91. See (citing 37. Id. at v. 2085 Gamer Jones 529 U.S. Peugh, 40. See 133 S.Ct. at 2079. 244, 247, 257, 1362, 120 S.Ct. 146 L.Ed.2d (2000)). 236 Garner, 247, 41. See 529 U.S. at 120 S.Ct. 1362. 460, Rogers, 38. See 532 U.S. at 121 S.Ct. 1693 ("The Clause, terms, Ex Post Facto its own at 42. 362 S.W.3d 616. apply Extending does not to courts. through Clause to courts the rubric of due 43. Id. at 617-18. process thus would circumvent the clear con- stitutional text. It would also evince too little (Alcala, J., post, op. at dissent- 44. 180-81 regard important for the institutional and Cf. ing). legislating, contextual differences between on hand, the one and common law decisionmak- other.”). ing, on the 45.See 362 S.W.3d at 616-17.

166 framework, prohibition,50 of the ex cognate Marin we focus on under our at the nature of the issue—not has made clear that Supreme Court Instead, circumstances under which it was raised.46 the are not co-extensive.51 two Therefore, analysis here must turn on our limitation —rooted process due the statute-of-limitations de- the nature of “basic that a criminal statute principle itself, not on the claim that hind- fense give warning must fair conduct just happens the record to show that sight protects against it makes a crime”52— hypothetical prosecutor particu- these statute, of a “judicial enlargement” charged lar circumstances could have Heil- alleged is hot here.53 state-jail felony man with the non-barred protecting importance E. The It would plea. offense at the time of his good-faith, length plea agree- arm’s easy misinterpret a statute-of-limita- ments uniquely as a tions defense fundamental raised, properly when it is right, given that today is further bolstered Our decision But it leads to one result: dismissal. that the by the unintended effect distinc- legislative true nature —a mere “act its limita- pure-law tion between factual and modest, when com- grace”47 especially —is sanctity tions defenses has had on the constitutionally pared weightier, based Proctor, finality plea agreements. that we have nonetheless deemed rights practical we advanced several reasons for forfeitable.48 treating a limitations defense as forfeita- ble, that the defense has “little to arguing however, should not opinion, This truth-finding function” of our do with the powers unfettered to the grant be read to criminal-justice system and that a defen- can violate judicial branch. Courts still might gain dant waive the defense “to time Process of the Fifth the Due Clause plea bargaining” or “to vindicate through ju an “unforeseeable Amendment statute, good significantly, name.”54 But most of a criminal enlargement dicial Phillips dissent warned of the exact cir- retroactively.”49 Although this applied address, adding to regarded judicial as the cumstance we now limitation is often Marks, Marin, 192, 49. at 97 S.Ct. 990 S.W.2d at 279. See also Grado See 430 U.S. 46. 353-54, State, 736, Bouie, (citing (Tex.Crim.App. 378 U.S. at 84 S.Ct. 445 S.W.3d Marin, 2014) ("In 1697). general we held that the preservation requirement’s application turns' right allegedly infring nature 191-92, id, 50. See 97 S.Ct. 990. ed.”). 459, Rogers, 51. 532 U.S. at 121 S.Ct. 1693 Proctor, Phil 967 S.W.2d at 843. See also ("Contrary suggestion, petitioner’s no- P.J., (Keller, lips, 362 S.W.3d at 626 dissent go did we so far as to [Bouie] where ing). specific categories incorpórate jot-for-jot the process of Calder into due limitations on See, 173, e.g., Reyna 168 S.W.3d decisions.”). judicial application retroactive (Tex.Crim.App.2005) (holding 179-80 that a defendant forfeited his Confrontation Clause Bouie, 457, (citing id. at 52. See S.Ct. failing properly preserve claim 'it at 1697). 378 U.S. at 84 S.Ct. trial). See also Anderson v. ("[0]ur (Tex.Crim.App.2009) prior Marks, 53. See 430 U.S. at 97 S.Ct. 990. decisions make clear that numerous constitu- rights, including implicate tional those that a Proctor, S.W.2d at 844. See also Phil process rights, may due 54. defendant's forfeit- P.J., (Keller, lips, at 624-25 dis purposes appellate ed review 362 S.W.3d unless senting). properly preserved.”). tence, forego- which than possibility lighter Proctor’s list “the what legal the been, part a limitations defense could be of a sentence would have ing and then turn agreement involving multiple around and attack the plea legality of the ille- gal, lighter charges.”55 sentence when it serves his so,” interest to do Heilman as now tries to consequence It is this unintended do.61 part As of an arm’s length plea Phillips holding our that so concerns us agreement good faith, made in Heilman spurs and our decision overrule it. expressly waived his limitations defense to have long recognized important the Courts a time-barred misdemeanor offense in two plea agreements our criminal- play role written signed and documents so as to justice system.56 agreement itself plead guilty facing state-jail avoid “may variety stipulations contain a wide felony now, indictment. But after serving and conditions that the state to allow tailor the six months deferred-adjudication of his reach agreement conditions order to sentence, he the judiciary’s seeks assis- Allowing defendant.”57 for such tance in reneging. decision today Our ad- wide-ranging plea agreements benefits not dresses this inequity. State, only the defendant who are if And we inequity by addressed this explore array stipulations free full merely focusing on multiple Heilman’s plea negotiations, and conditions in but waivers without overturning first courts, Phillips, are also whose dockets thinned we unnecessarily would complicate how we parties ready willing to settle. analyze the statute-of-limitations defense Phillips, But if we adhere we Indeed, under Marin.62 doing so would very invite set of circumstances that again allow for categorization Generally, now we address. a defendant nature, depend defense to not on its as accepts the of a plea agree who benefits requires, Marin but on circumstances is estopped challenging ment from its val under which it was raised.63 idity.58 Yet estoppel apply does not when Complicity F. Heilman’s in the Cir- jurisdiction.59 trial court lacked Raising cumstances His Limitations De- Therefore, because held that a fense pure-law limitations defense is an attack jurisdiction,60 court’s an defendant Courts also often bar otherwise valid when, here, “reap illegal could of an benefits sen- limitations defense as the de- (Keller, Rhodes, (cita- at 55. 362 S.W.3d 625 n.58 See 61. 240 S.W.3d 891-92 P.J., dissenting). omitted) (seeking exactly tions to avoid such a result). See, States, e.g., Brady 56. v. United 397 U.S. 742, 752, 90 S.Ct. 25 L.Ed.2d 747 Proctor, (‘‘We See 62. 967 S.W.2d at 844 also (1970) (cataloguing advantages plea of a placing conclude that limitations in the sec- agreement prose- to both a and the defendant category equally ond inappropriate. Marin cution). important However the statute of limitations case, might given be to a in a defendant 57. Moore v. 331-32 hardly statute can be deemed ‘fundamental to (Tex.Crim.App.2009). functioning proper adjudicatory of our (Tex. 58. Rhodes Indeed, system.' law at common there was Crim.App.2007). no limitation time within as to the prosecuted.”). offenses could be 59. Grado, S.W.3d at 63.See 445 S.W.3d at 739. (or indictment, in this case or forfeit felony un- it with attempts present to fendant waive) to plead and his limitations defense very circum- by creating the hands clean Heilman chose offense. the misdemeanor example, For application. for it's stances choice now use that latter and cannot Florida, the Supreme the Court Spaziano of his acceptance court’s attack the trial to of a defendant’s judge’s rejection upheld a may He of sentence. imposition plea when instruction lesser-included requested made, he must choice he but regret the his refused to also waive the defendant consequences. accept its to the lesser-included defense explained that The Court offense.64 Furthermore, Spaziano “that require would otherwise hold a statute-of- thing make one clear: Yount that it has a believing into be tricked jury lacking any limitations defense fac- to find crimes for which choice of jurisdic not attack the component does reality there is guilty, [when] defendant did, Spaziano court.70 If it tion of the trial Spa- gave instead no choice.”65 to attack have retained would having the bene- “choice between (cid:127)ziano the if he were found jurisdiction court’s trial instruc- included offense the lesser fit of lesser-in only the time-barred guilty the statute of limitations asserting tion or did, if it once Similarly, cluded offense. included offenses.”66 on the lesser only guilty found Yount jury had Yount, we in State v. Spaziano, Citing offense, it in effect would lesser-included attacking from estopped found a defendant ju lacked that the trial court have found lesser-in- for a time-barred conviction his have and no conviction would risdiction himself when the defendant cluded offense requested regardless of who possible, been instruction.67 the lesser-included requested Instead, a instruction. the lesser-included him jury convicted When standing alone is mere limitations defense offense, Yount raised his lesser-included legis grace” “act of ly procedural and moved to set aside limitations defense forfeited.71 lature that can be the trial We reversed judgment.68 motion, concluding of that III. Conclusion granting court’s the ben- request could not both that Yount attempt renege Heilman’s and then attack his efits of the instruction accepting after its benefits guilty plea the instruction.69 based on conviction consequences the unintended exposes To v. State. prior holding a similar choice. He our Heilman faced sanctity finality plea defense to the ensure could retain his limitations and at good faith reached state-jail agreements and risk a offense misdemeanor Florida, 447, 456-57, 69. Id. at 9-10. Spaziano v. 468 U.S. 64. 3154, (1984), 82 L.Ed.2d 340 abro- 104 S.Ct. Arizona, grounds by Ring v. gated on other ("[A]n charges indictment 70.- Id. at 8 153 L.Ed.2d 556 U.S. S.Ct. by limi- of an offense the commission (2002). jurisdiction upon the trial confers tations still court, bring the that the defendant must such 456, 104 S.Ct. 3154. 65. Id. at trial court the attention of the defect error.”). - any preserve order to 66. Yount, (Tex.Crim. 853 S.W.2d 67. State Proctor, Phil 967 S.W.2d at 843. See also App.1993). P.J., (Keller, dissent lips, at 626 ing). Id. at 7. longer unquestion- no ute of limitations length, arm’s we will defenses based pure- distinguish between factual and ingly facts upon “pure and those based law.” Instead, in cir- law limitations defenses. (Tex. Phillips lacking any legislative cumstances Court, Crim.App.2011). According to the especially violation—and when that the reason for this distinction was that a good-faith, of a arm’s occurs the context pleading gives that rise to a limitations are length plea agreement Marin —both factual “reparable,” defense is while a rights, as category-three forfeitable under pleading gives that rise to a statute-of- Therefore, Proctor v. State. because there limitations bar is not. Id. violation, the was no ex trial “Reparable” capable being means properly jurisdiction court exercised its to put mended or into sound condition or plea Heilman’s Heilman had accept capable (or waive) being or good. remedied made every right to forfeit in this case part of that plea. his limitations defense as Third New Webster’s International Dic- tionary (2002). holdings We reverse the of the habeas But the pleading in court of appeals, court and the and we this case not capable being put was into appeals remand the case to the court of to sound condition or good. made The mis- assess Heilman’s other claims. demeanor information in this alleged case that the offense was committed on October NEWELL, J., concurring filed a .2008. It was filed on December KELLER, P.J., opinion, in which tolling language. There is no There HERVEY, J., MEYERS, J., joined. filed intervening charging is no instrument. JOHNSON, J., dissenting a opinion. filed Under Article 12.02 of the Texas Code of ALCALA, J., a dissenting opinion. filed a Procedure, Criminal the statute of limita- dissenting opinion. tions for years. this offense is two Tex. NEWELL, J., concurring opinion filed a (West Code Crim. Proc. Ann. art. 12.02 KELLER, HERVEY, J., in which P.J. and 2008). Appellant right had an absolute to joined. quash the information in this case. I agree applicant right forfeited his Applying Phillips v. this misde- complain about limitations bar on absolutely meanor information was barred his misdemeanor for tampering conviction by pure 100% law no additives or governmental with a record when he preservatives. Phillips, 362 pleaded guilty the untimely charge Phillips: 617. As this held in exchange agreement for the State’s to for- governs But go timely jail felony indictment on a state Proctor statute-of-limita- n charge. I join majority opinion be- tions defenses that are based on facts I majority exactly cause believe the pleading (challenging includes this case is in irreconcilable “tolling paragraph,” “explanatory aver- conflict with v. State and that ments,” allegations,” or even “innuendo sep- should be overruled. I write that suffice to show that the charged arately explain why I believe the at- not, offense is at least on-the face of the tempts to harmonize this case with Phil- indictment, limitations), barred lips fail. pure (challenging law an indictment that shows on its face that argument to Phillips hinges

One save absolutely limi- “reparable.” the word the statute of tations). majority drew distinction between stat application here “revived” case, ability to retroactive the State’s And this prosecution. previously barred offense in another with another

proceed nothing to mend the misdemean- court did That “irrelevant” distinction is Id. at 617. case; had to resurrect judge the trial centerpiece argument now it.1 support. on life keep Phillips lim- that can be disagree

I also Texas The relied Carmell v. Court post ex only address claims of ited to a judicial application that a of argue facto to no because there was primarily violations facially expressly was not statute that in Phil- at issue post legislation ex against prohibition retroactive violated the facto holding in reached its The Court lips. laws, at but the statute issue post ex facto that this argument to the State’s response proof changed quantum in the Carmell post legisla- not involve ex Texas, case did v. 529 pending in cases. Carmell facto pro- was written the statute 1620, tion because 513, 530-31, 120 146 S.Ct. U.S. 617; at Phillips, (2000). spectively. Contrary 577 to the Phil- L.Ed.2d 740, 1997, § Leg., 75th 3 Carmell, Acts Ch. see also it was lips majority’s reading (“The by this Act change in the law made opened act in that legislative the Carmell prosecu- if violation, to an offense the apply not does not post the door to the ex facto by limi- the offense became barred judicial application tion of of that the erroneous of this Act. before the effective date only retrospec- tation been a act.2 If there had that offense remains Carmell, in judicial application at issue tive though this Act had not taken as Supreme States Court’s then the United effect.”). essence, argued In the State weeks after Car- decision Johnson —two terms, statute, its own did not the that decided—would make no sense. mell was vanilla “plain Johnson, there was so apply, Supreme the States United an issue of claim” rather than post held that there was no ex facto 362 legislation. Phillips, post ex its own terms question where statute facto (Keller, P.J., dissenting). at 624 only ques- S.W.3d the apply retroactively; not did telling: response This was Court’s old tion in that situation was whether .the the trial court’s action. the statute authorized is irrelevant because This distinction States, 529 U.S. Johnson United result is the same—the post ex facto purely judicial appli- justify the that a fact of "Resurrection” means the act or 1.. death, (as rising again prohibition from an inferior state the cation of a statute violates disuse) decay, superior one. into a post legislation. against ex Id. 617 Webster's facto 1937 Carmell, ("And, Dictionary Supreme Court held New International Third application that retroactive of statutes (2002). .the facially expressly are not retroactive mixing seems to flow from 2. The confusion Facto nonetheless violates the Ex Post categories. The Calder v. Bull the different Clause.”). oranges, By comparing apples to regarded Phillips majority the statute at issue majority the fact that obscured belonging Calder v. Bull cate- as same category pure retroactive neither involves a namely gory Stogner, as the statute at issue facially prospective judicial application of a category where a the second Calder v. Bull Phillips. present in statute like the situation aggravated greater or made the crime statute Simply put, post claim a successful ex Phillips, facto than when committed. statute, judicial' applica- not the invalidates Stogner at issue in at 616. But post it. there was no ex tion of Because facially Consequently, was retroactive. facto Carmell, any discussion of involving statute involved majority applied a case necessarily proof post dic- quantum that reduced the an ex violation was a statute facto necessary support pend- in a a conviction ta. category ing fourth Calder v. Bull case—a —to (2) 702-03, outset; 146 L.Ed.2d flawed from the ap S.Ct. rule’s (2000); (3) see also Ortiz 93 S.W.3d plication produces results; inconsistent Contrary (Tex.Crim.App.2002). precedent, the rule conflicts with other reasoning in majority’s especially precedent when the other always Supreme Court was concerned (4) reasoned; soundly newer and more legislation, ex produces rule regularly results that are results. unjust, are unanticipated by the prin rule, ciple underlying the or that place clear,

To be I do not .the understand unnecessary system; burdens on the that a majority to hold defendant must (5) the support reasons rule have object preserve retrospec- claim that a been undercut with the pro- passage tive statute time. violates constitutional Lewis, (Tex. post parte Ex 219 338 against legislation. hibitions S.W.3d facto majority’s holding Crim.App.2007). Nor do I read the to such Adhering prece that say this case to an ex not promote judicial dent does efficiency anything violation is but er- consistency, fundamental encourage upon reliance ror. I be- join majority opinion But decisions, judicial or contribute to the in Phillips cause did involve ex Paulson, tegrity judicial process. of limi- legislation; “plain-vanilla it involved 28 at 571. S.W.3d tations claim.” 362 at 624 S.W.3d join majority I I because believe (Keller, P.J., dissenting). held This Court qualifies Phillips type prece as that of forfeitable, in Proctor that claims are such dent. every That almost member of this and I do not on the believe limitations agrees to a Court result in contravention scope of Proctor to “fact-based” limitations Phillips requires of the one clearly further defenses was warranted.3 unworkability demonstrates of Phill frivolously This Court should not over correct; ips.4 majority The is either this precedent. rule v. established Paulson goes Phillips case Like the does. ma State, (Tex.Crim.App. 571 S.W.3d jority, I vote that it’s Phillips. 2000). But stare is not an decisis inexora ble strong command. there While is a MEYERS, J., dissenting opinion. filed a law, of presumption in favor established Today majority this reconsider our may precedent prior its overrules (1) State, when: rule or original Phillips decision was decision in 362 S.W.3d Judge argues Meyers Phillips in his dissent that this of relief. the denial That would altogether Court should rath- overrule Proctor require felony denial of relief in court but party er Phillips. argues than Neither emphasizes not in misdemeanor court further necessary such action to the resolution Phillips to me unworkable how importantly, doing the case. More would so is. Meyers' Judge not resolve case because this upon charg- reliance Yount overlooks that the dissents, Judge agrees 4. While Johnson she ing subject Yount to instrument in was not an Judge appellant is not to relief. entitled Yount, absolute limitations bar. State v. 853 Meyers quite say does not in his dissent that (defendant (Tex.Crim.App.1993) appellant estopped bringing from this claim involuntary manslaughter indicted for re- upon appeal, parte but his reliance Ex quested jury instruction on of- lesser-included Yount and his call to Proctor overrule seems though fense of DWI even it was barred suggest Judge only it. to over- Alcala’s call limitations). pro- the statute of Had the case part rule further demonstrates to felony ceeded in court rather misde- than an me that was built unstable court, pure application meanor then foundation. Yount uninfluenced Proctor would allow of limitations within the statute occurred and determines (Tex.Crim.App.2011), See raises the issue. only to relief on if the defendant is not entitled Appellant (Mey- to at 847 limitations claim. With 967 S.W.2d statute of Proctor v. continuing J., down an ers, we are day’s dissenting). decision the entire path placing unreasonable surrounding the present problems complain of on the defendant burden court arose when this of limitations statute The statute issues. of limitations limi- and make change the law decided a defensive should not be is a not Proctor tations a defensive issue. issue, we should I that the case and believe opinion, or substantiated a well-reasoned today is Proctor overruling actually it was way and was decided (Tex.Crim.App. in the case keep the convictions order to 1998). Today, rather being overturned. from the law concern- changed In Proctor we be cor- overruling Phillips, we should than held, for of limitations and ing the statute in Proctor and made recting the mistake time, is a rule that that limitations the first of limita- considering the statute return to only upon the re- implemented must be that is requirement an absolute tions defendant, it rather than be- quest Therefore, I prove. State’s burden that must be ing requirement an absolute this Proctor and remand would overrule every pros- criminal the State in proved by examined appeals to be case to the court of However, the making Id. at 844. ecution. Yount, 853 S.W.2d 6 light of State v. issue was limitations a defensive statute of held that in which we (Tex.Crim.App.1993), then, problematic and it problematic jury a instruc- requested who a defendant those should be now. Defensive issues not offense could tion on a lesser-included he to show that require a defendant that that his conviction of complain' later limi- The statute of guilty of a crime. by For the was barred offense limitations. with a defen- nothing has to do tations reasons, I dissent. respectfully foregoing relates to the State’s guilt dant’s —it therefore, the a case—and timely filing of JOHNSON, J., dissenting a filed heavy bear the bur- defendant should not opinion. limita- invoking it. The statute of den of Eric Heilman is not agree I While something the State tions is meant to be “statute of limita to relief on his entitled much prosecute, in order to prove must claim, join majority’s the I cannot tions” place crime took prove it must that a like it is nei judgment because opinion or its county. in a particular Tex.Code Crim. to overrule necessary appropriate nor ther Further, the State is art. 13.17. Proc. v. State.1 decision prior our allege in the indictment that allowed to Here, traded his explicitly defendant about” a certain place crime took “on or limitations” any make “statute of right to date, that date is “anterior long so as charge of tam the misdemeanor claim to indictment, and not presentment record in ex governmental a pering with of- that the so remote for the cor avoiding indictment change for limitation.” Tex.Code by is barred fense felony offense that state-jail responding Requiring art. 21.02. Proc. Crim. as a defendant not time barred. Just was by alleges the State not be dates charge on a time- jury a requests who holding that the limitation is at odds with waives his offense barred lesser-included actually prove that the offense State must (Tex.Crim.App.2011). 1. 362 S.W.3d guilty opportunity plead to later claim that his conviction to a misde-

right proceed limitat meanor or to trial the lesser offense was barred after indict- ions,2 expressly felony charges. a defendant who ment on On December so too 17, 2010, a Applicant trades his to a limitations claim on was advised that he being charged 22, 2010, with misdemeanor to avoid had until December to decide right to later claim that felony a waives his to enter plea accept whether his conviction was barred limitations. misdemeanor offer. have but he might chutzpah,

Heilman does The Special Prosecutor filled in the events claim.3 not have a valid limitations perspective: from his On December [applicant’s origi-

I. nal trial was advised that the counsel] Heilman, a member of the Beaumont grand jury unanimously voted to indict Department, investigating Police was both Eric Heilman and Brad Beaulieu drug-trafficking operation October 2008. felony offenses of with tampering He, Beaulieu, Officer Brad and a confiden- and, governmental records in the case of up sting operation tial informant set Beaulieu, aggravated perjury. Brad At dealer, suspected drug target but their request and with consent of completing left the scene without the grand jury, an offer was extended to transaction. Heilman and Beaulieu chased Heilman and Beaulieu through their at- suspect They and arrested him. torney ... plead guilty mis- [the] large seized cash and a cache of cocaine demeanor offense of with a tampering But, in drafting probable- from him. governmental adju- record for deferred affidavit, any cause Heilman omitted refer- being formally dication in lieu of indict- ence to the confidential informant or the felony ed on charges. plea The offer sting operation. suspect eventually express was conditioned on their waiver participation disclosed the existence and of any statute of limitations claim that the confidential informant. they may have regarding the misde- A special prosecutor appointed, was and charges they meanor to which would grand jury investigation began. Accord- plead. grand jury adjourned The until ing findings, to the habeas court’s Heil- December 22 to allow Officers Heilman depiction man’s of the events was as fol- and Beaulieu to consider the offer. lows: 22, On December Officers Heilman and investigation Applicant The [Heilman] appeared Beaulieu through continued the fall On before the Court with [of 2010]. 23, 2010, attorneys, properly November is new were admon- Applicant advised ished, rights, expressly the file of the Beaumont Police waived their limitations, Department Internal Affairs Investiga- waived the statute of and being subpoenaed pleaded guilty tion was to the Jeffer- to the misdemeanor County Jury. son Grand On charge tampering governmen- December with a 14, Applicant 13 or was advised that the tal In light pleas, record. grand jury had met that he grand jury’s expired and had an term on December Yount, 6, (Tex. plaining 2. See State v. that his conviction of that lesser of limitations). (when fense was barred Crim.App.1993) requested defendant jury that the be instructed on the lesser-in fact, originally Heilman did not raise this offense, estopped cluded he was from com claim; judge the habeas did. 2010, agreement and that the formally indicting ei- cant’s without ther officer. was waive the statute of limitations nullity.” “void and a He concluded itself with charging Heilman An information authority have to enter a that he did not in the offense was filed the misdemeanor a matter of deferred-adjudication order as 2010. At county court on December hearing day, on that Heil- the information guilty-plea judge law. The dismissed spe- attorney, along with the man and his adjudication or- and vacated the deferred judge, signed the trial prosecutor cial der. documents, admon- the standard written the court of appealed, The state ishments, A handwritten and waivers. judge. affirmed the habeas appeals read, “I page at the bottom of sentence of limitations.” hereby waive all statute appli- are

Directly above that sentence II. initials, attor- well as those of his cant’s as reli- problem The with the lower courts’ Adjudication Deferred ney. On official we ance on Order, con- probation to three of the next that a “matter of law” statute-of- explained ditions, following statement: charg- claim is one in which the limitations early termination opposition No State face that the ing instrument shows on its will not file after six Defense months[.] prosecution is time-barred and that early termination before six There is abso- “reparable.”5 Defense waives statute defect is not [of] months[.] Judge per Flores[.] lutely nothing that the state can do to save prosecution; irreparably its it is barred. appeal and did Heilman had no example, For the defendant He followed his attempt appeal. with twelve counts of sexual charged not file for was bargain end of the and did early termination for six months. in 1982 and but offenses committed bargain part state followed its no indictment was filed until 2007. The oppose early did not termination. Howev- statute of limitations for all twelve counts er, discharging pro- after four months then-existing had run 1993 under the obtaining Adjudica- a Deferred bation and limitations, ten-year statute of and there Dismissal, Heilman filed an tion Order of from was no other offense that had arisen corpus of habeas application for writ charge the same conduct alia, that he had entered an claiming, inter nothing him. There was the state could do involuntary plea. charges, to resurrect those which had been own, on raised the judge, The habeas years. prob- time-barred for fourteen The issue of whether Heilman’s lem was incurable. was therefore two-year of was barred the statute prevail entitled to on his ex for the misdemeanor offense of limitations claim as a matter of law. tampering governmental with a record. pleading “reparable,” But if the is then on this decision in Relying part Court’s affir- State,4 the statute of limitations is a factual he held that the two- Phillips v. appli- limitations barred mative defense on which the defendant year statute of (Tex.Crim.App.2011). Ser- 5. Id. at 617. 4. 362 S.W.3d opinion endipitously, we delivered our Phillips just days pro- nine before Heilman’s formally discharged. bation was proof.6 felony bears the of As we ex- taming burden indictment for which the plained in statute of limitations run. had not As the state has consistently argued, Heilman gives The limita pleading that rise to a “ handsomely ‘benefited from his bar- reparable.

tions factual is The defense ”9 gain,’ and he complain cannot now.10 gives rise pleading that to a statute-of- In comparison, Phillips went trial limitations bar not. The first is for And, benefitted not at all. before this during feited unless raised before or the Court, state, represented the by the trial State pretrial and cannot raised Prosecuting Attorney, conceded that writ. The second—a true the state was mistaken at not trial and on direct Iep- violation—is forfeitable under appeal and that the of pert.7 statute limitations had run years four before the case, In this unlike Phillips, another Legislature passed the extension of the offense that from the arose same conduct statute of limitations on which the state was not time-barred. Had Heilman said had relied. that he did not want to waive his statute- ‘ misdemeanor, of-limitations claim to the This situation is the converse of that the prosecutor say, could “Fine. The the Supreme addressed in Spazi- Court grand jury ease, return a felony will indictment ano v. Florida.11 In that the defen this This being afternoon.” misdemeanor infor- dant capital-murder was tried on but, mation easily “reparable” by charging was at charges, jury-charge the confer felony ence, the state-jail tampering offense of trial judge to charge refused record, governmental with a jury which has a on lesser-included offenses of three-year statute and was limitations murder and manslaughter because the de Although time-barred.8 the face fendant refused to waive the statute of limitations, the indictment as if charge looks were which had run on already those - time-barred, a glance plea papers On appeal, offenses.12 the defendant com- and deferred-adjudication judgment plained he required should not be probation conditions of shows unlike waive right one substantive on —reliance explicitly Heilman waived his statute limitations —to obtain the right to complain about the of lim- benefit of another substantive —in concerning itations misdemeanor on structions lesser-included offenses.13 return for prosecutor’s act not ob- Supreme The held that defen Id. estopped validity deny pro- order or thereof, thereof, priety any part any (citing Ieppert 908 S.W.2d 217 grounds; reject nor can he its burdensome (Tex. 1995). App. Crim. consequences. only exception to this principle challenges subject-mat- is for to the 12.01(6); 8. Tex.Code Crim Proc. art. see State jurisdiction rendering ter of the court Collier, (Tex.App.- (internal judgment.”) quotation marks and ci- ("The pet.) Dist.] Houston no [1st stat omitted). tation jail felony ute of the state tampering governmental a is record years.”). 447, three 3154, 11. U.S. 82 468 104 S.Ct. L.Ed.2d (1984). 340 Heilman, 503, (Tex. 9. State v. 413 S.W.3d 508 2013) App.-Beaumont (quoting prosecutor). 450, 12. Id. 104 at S.Ct. 3154. State, 882, 10. See 240 Rhodes v. 891 ' ("[o]ne 455, (Tex.Crim.App.2007) accepts who the 13. Id. at 104 S.Ct. 3154. decree, judgment, judicial benefits of a or

176 it, or a society’s and eat defendant’s interests.16 As not have his cake dant could matter, make too. The defendant was entitled the defendant public-policy when lesser-in on the his choice: instructions acts that may prosecuted still be for are if he the statute of. offenses waived cluded by a of limitations and not barred statute or those offenses no limitations on lesser episode, from the same criminal arose if he did not instructions lesser-included provide not full limitations statute does held limitations waive the claim.14 We defendant, to the ratio- protection Yount; v. may same State the defendant apply.17 for the rule not nale does limitations and waive the statute of either special question There is no if of instructions on lesser-included obtain had Heilman for the prosecutor indicted of limita insist the statute fenses or felony tampering with forego state-jail instruction offense of tions and lesser-included (an time- offenses that are otherwise on record that governmental a .offense barred.15 time-barred), could and was not Heilman of would have waived the statute limita- line in those cases is that

The bottom pled guilty if he to the lesser-includ- tion's may expressly of be the statute limitations though misdemeanor even it ed offense when special waived in circumstances technically time-barred.18 re- protect limitations statute not the was does 456, ing Spaziano; citations 104 The Court other internal omit 14. Id. at S.Ct. 3154. 919, ted); Cartagena v. explained, 125 So.3d 921 (defendant may (Fla.Dist.Ct.App.2013) ex thinking jury not to into If the is be tricked pressly waive statute of limitations return range there is a for which that of offenses for instructions on lesser-included offenses if accountable, may the defendant be held followed); procedures People certain are question requires then the whether Beck Brocksmith, 818, 178 Ill.App.3d 237 Ill.Dec. that a lesser included offense instruction be 536, 1059, ("If (1992) N.E.2d 604 1065 being given, with the forced to defendant expired offense waiye the defendant wishes to seek a lesser statute of on verdict, offenses, try possible compromise or the defendant for the he those whether given having willing consequences be between accept should choice must be of decision, the benefit lesser included offense even if it means conviction of asserting or of limita- instruction the statute crime for of limitations has 224, on the lesser offenses. tions included We affirmed, expired."), Ill.2d Ill. option 113, think the better is that the defendant (1994). gener See Dec. 642 N.E.2d 1230 given be Adelstein, choice. ally, Alan L. the Crimi Conflict of clear, Supreme Id. As the Court made waiver nal Statute Limitations with Lesser of Offenses of the statute of limitations in this context Trial, (1995); 37 Wm. Mary & L.Rev. may protect jury and those interests of Thomas, Annotation, Waivability Tim A. society, as well as the defendant. Against Bar Limitations Criminal Prosecu tion, Annotation, (1990); 78 A.L.R.4A 693 Yount, (Tex.Crim. State v. 853 S.W.2d Offense, Against Conviction Lesser Which 1993). App. Run, Where Statute Limitations Has Statute Against Has Not Run With Which De —, Offense —State, Hulsey v. 16. See So.3d (1956). Charged, Is 47 A.L.R.2d 887 fendant CR-13-0357, (Ala.Crim.App. 2014 WL at *2 3, 2014) ("Notwithstanding the fact Oct. Cartagena, 17. See at 921. 125 So.3d special where in certain circumstances may expressly bar of the statute waived be " statute, By permitted district court operate it when does in the defendant’s try favor, a misdemeanor that is included within a ordinary ... under circumstances the offense, felony though the even misdemeanor bar of the statute is not waived a mere it, subject would not otherwise be court’s failure to assert statute of limita and the jurisdiction.” McKinney may appeal properly tions asserted (cit relief.") post-conviction petition (Tex.Crim.App.2006). in a See Tex.Code instead the case also true: If an indictment remand to that court for verse is of- charging the misdemeanor information further consideration of Heilman’s claim tampering governmental with a Heilman, fense of on the merits. See time-barred, state-jail but the record goes at 507-08. Because it in too far govern- tampering of with felony offense the ex delving into issues that not,19 defendant record is then a mental were at the heart of this Court’s the waive reliance on stat- may expressly which Phillips, but are not implicated plead ute of limitations and to the misde- present appeal, I join cannot this offense to avoid indictment and meanor majority opinion, agree Court’s nor can I corresponding offense. felony trial on with its decision to resolve the merits of on that sum, could, did, Heilman’s claim basis. express- In Heilman rely his statute ly waive Background pleading guilty

of the mis- I. limitations gov- of tampering demeanor offense of The facts this case simple involve a record in for the exchange ernmental claim, appli- raised the first time in an agreement on state’s not to indict him the cation writ of for a habeas corpus, that state-jail felony tampering offense for absolutely by conviction was barred statute of had not which the limitations running of the statute'of limitations. Heil- because too far goes run. But the Court man had agreed plead guilty to the easily distinguishable and overrules offense tampering misdemeanor of with a I must dissent. governmental in exchange record for the agreement felony State’s not to pursue ALCALA, J., dissenting opinion. filed a him, charges against placed and he was it unnecessarily Because overrules this two- adjudication. Although deferred precedent recent v. Court’s year run already statute had respectfully I dissent from this at guilty plea, the time his Heilman judgment reversing court of Court’s defense, waived his limitations as indicated affirmance of appeals’ granting the order on the signature Adjudica- Deferred post-conviction corpus habeas relief to Eric states, Order, tion “Defense waives Michael Heilman. See per Judge statute limitation Flores.” [of] (Tex.Crim.App. S.W.3d 608-10 successful de- completion After his Heilman, 2011); State appli- Heilman 2013). adjudication, ferred filed an (Tex.App.-Beaumont The ma writ corpus. cation for a of habeas jority opinion determines that it neces response application, to Heilman’s the ha- sary entirely overrule a distin prosecu- beas court determined that “the guishable involving case an was, in claim, tion for the misdemeanor offense relatively in order to resolve this plain charging simple appeal involving ordinary words and sense of the an stat claim, facet,]’ disagree. I its ute-of-limitations but I document ‘on appeals’ holding applicable would reverse court of limitations.” Id. jurisdiction that the trial court in- lacked 506. The habeas court dismissed the (jurisdiction governmental arts. tampering Crim. 4.05 district with a record is Proc., (when courts), felony felony, prove 4.06 misde- includes to establish the state must meanor). intended de- that the defendant to "harm or entry when fraud another” he made a false pertinent governmental 19. The distinction between the mis- record. Tex. Penal Code 37.10(c)(1). state-jail felony § demeanor and offenses of matters in holding respect to those adjudi- the deferred and vacated formation appeal. I resolving the court of course of this appeal, Id. On cation order. therefore, would, the habeas court’s order narrowly affirmed more address appeals Relying on relief. Id. at 508. granting language law” from Phil- “pure it deter- opinion this Court’s judgment I reserve as to lips, and would n ex that, a statute- although generally mined post the correctness of facto that jurisdictional, bar is not of-limitations properly pre- analysis until that issue is “ ‘pure law’ chal- apply rule does a future case. by the facts of sented charging instrument lenges, where Unnecessary to Disturb A. prosecution that the on its face shows Analysis of Ex Post Facto Claim Court’s limita- by the statute of absolutely barred (citing Phillips, 362 Id. at 507 tions.” analysis in Phil- step As the first its 617-18). It further cited this the merits of lips, the Court addressed Smith opinion parte in Ex for Court’s that his 2007 convictions Phillips’s claim “ ‘[wjhen the face of the proposition committed in 1982 and for sexual offenses charged that the offense pleading shows Facto clauses of 1983 violated the Ex Post limitations, by pleading is so and federal constitutions. See id. state trial court fundamentally defective that the (discussing “absolute” at 610-16 jurisdiction and habeas re- not have does laws, post from ex and hold- be free facto ” (quot- Id. at 508 granted.’ lief should post ex claim was ing Phillips’s facto Smith, ing parte Ex “valid”). complaint Phillips’s The basis for (citations (Tex.Crim.App.2005) quota- that, by applying a 1997 amendment was omitted)). Applying these tion marks way of limitations in such a to the statute case, the court of to Heilman’s principles his for other- as resurrect that, given that appeals determined offenses, time-barred his convictions wise run at already of limitations had Ex Facto Id. at violated the Post Clause. plea guilty, “the informa- the time his 607-08. Because his offenses had been tion, face, charged an offense the on its “extinguished by running of limita- longer prosecute, could no and one State offenses, he contend- tions” those over which the trial court did not have ed, by “could not be revived the 1997 jurisdiction.” with- version of the statute of limitations” violating prohibi- out that constitutional Unnecessary II. It Is to Overrule tion. Id. at 609-10. After the court Entiréty Phillips In Its rejected argument, this appeals Contrary majority opinion’s deter- granted Phillips’s petition discretionary for mination that it cannot resolve Heilman’s “appel- whether the review to determine overruling Phillips without in its appeal the decision improperly applied] late court entirety, unnecessary I conclude that it is California, 539 U.S. Stogner to overrule and unadvisable this Court (2003)[J 2446, 156 L.Ed.2d 544 allow- S.Ct. post that an ex Phillips’s core been ing convictions for offenses had in that case. See violation occurred facto running of limitations extinguished 362 S.W.3d at 616. Heilman’s thereby violat[ing] the ex application not involve the claim does and Federal provisions of the Texas Con- legislation, impli- nor does it retroactive stitutions[.]” any way, cate the Ex Post Facto Clause and, therefore, Addressing Phillips’s the merits of beyond proper it is complaint, the Court held scope Phillips’s of our review to revisit contrast, application relatively statute of straight- amended involves Phillips’s limitations to conduct violated argument forward that prosecution was Phillips, Ex Post Facto Clause. 362 absolutely by running barred “prosecution S.W.3d at 616. It stated that statute of Phillips, limitations. Compare under the indictment ... was 2007 abso- 616, Heilman, 362 S.W.3d at 413 lutely by the statute limitations S.W.3d at 507-08. This Court should ac- in charges not These could be res- cordingly limit its of Phillips reevaluation by urrected 1997 extending a to those ques- matters that are into called statute of limitations for sexual offenses.” tion by the facts this case. 607; Id. at (explaining see also id. at 613 Judicial restraint and stare decisis coun principle comply with Ex Post against sel majority opinion’s approach Clause, “a may Facto statute of limitations in revisiting beyond matters that are be extended the [Legislature, but a scope of presently the issue before us. period within the new time will Rangel State, this Court cautioned that permitted only if the period limitations “[jjudicial restraint and prudence prevent already had run not before the law was us from reaching out grabbing and issues changed”). Although the in Phillips simply they interesting because are and observed that the 1997 amendment con- important. willWe exercise our discre tained a savings standard clause and thus tionary authority only review where the post face,” was “not an ex law on its facto properly presented issues are for our con the Court nevertheless held that the stat- (Tex.Crim. sideration.” 250 S.W.3d 98 “application ute’s to a in situation which App.2008). gen And “stare decisis should already statute of limitations had run followed, erally be promotes because it before its enactment violates that constitu- judicial efficiency consistency, and it 616; fos provision.” tional Id. at see also id. judicial decisions, ters reliance on and con (determining 610 that the Ex Post Facto perceived tributes to the actual and integ Clause “not applies to laws are retroactive, rity of facially judicial process.” but also to laws that Hammock v. (Tex.Crim. (citations are applied retroactively”) omit- S.W.3d 892-93 ted). App.2001) (citing Proctor v. (Tex.Crim.App.1998)). S.W.2d As the of appeals court in this case against These all principles counsel indicated, in complaint unlike majority decision opinion’s to overrule the Heilman’s claim does implicate rely not post holding ex in upon the facto any way, Ex Post Facto Clause involved a discrete claim that application of of appeals the court not did address an amended statute of had re limitations aspect Phillips reaching its hold- violation, post sulted in an ex Heilman, ing. See at 507 n.l facto which is properly presented for our (distinguishing Phillips because it “dealt it review because was neither addressed action, with an ex facto post claim. Court appeals the court of nor called into law, not an ex facto post was under consid- question by facts of this case. proceeding eration in the habeas in this case.”). holding Phillips— The core Phillips B. ’s “Pure Law” Discus- application of an amended statute of sion Must Be Overruled prior limitations to conduct for which the period already Although disagree had run I results with this Court’s post majority opinion’s an ex violation—is irrelevant decision to overrule facto n claim, which, to our as Phillips resolution Heilman’s to the merits of the held case, that Proctor had agree argument in that I the State’s claim ex necessary that it that a forfeits statute-of-limi- defendant with its determination overrule, he does not it at reevaluate, tations defense if assert ultimately trial, stage in language guilt or before the problematic some stated, law” “pure statute-of-limita dicating that impli claim, that does not tions even one statute-of-limitations governs Proctor concerns, constitutes cate (chal- are based on facts defenses that right. See category-one, non-forfeitable that includes a “toll- lenging pleading 608, 616-19; Ma at

Phillips, 362 S.W.3d “explanatory aver- ing paragraph,” (Tex. 275, 279 rin 851 S.W.2d ments,” allegations,” “innuendo or even Crim.App.1993). charged that to show that suffice not, at least on face of the offense is initially concluding In after Phillips, limitations), indictment, by not barred presented that had a meritorious Phillips pure (challeng- law on] those based claim, [to then ad- post ex Court facto an that shows its face ing indictment argument Phillips that the State’s dressed absolutely by prosecution that is barred by his complaint had forfeited nevertheless limitations). pleading The the statute of in the trial court. 362 failing to raise it gives that rise to a limitations factual rejecting In the course of S.W.3d at 617. pleading The that reparable. defense is Phillips initially argument, that bar gives rise to a statute-of-limitations to be from ex explained right that the free is unless is not. The first forfeited category-one, is a non- post laws facto during raised or the trial and before (describing at 611-12 right. waivable pretrial in a cannot be raised writ. on Ex Post Facto as claims based Clause post second—a true ex violation— right cat- an “absolute first implicating facto —a Ieppert. is not under forfeitable which be egory right,” Marin “cannot forfeited”) Marin, (citing 851 waived (citations at 617-18 362 S.W.3d 279; Ieppert at S.W.2d omitted). passage Phillips this from It is (Tex.Crim.App.1995)). S.W.2d in appeals upon that the court of relied rationale, alone, standing That would have lacking in concluding even situations adequate an basis constituted any post of an ex viola suggestion facto Phillips to that had forfeited his hold tion, impli law” limitations claim “pure . should post complaint. Phillips ex facto categorical right cates a that cannot there, instead, dicta, it stopped have but waived or forfeited'and constitutes an ab went law that was unneces- on to discuss Heilman, See prosecution. solute bar to that sary holding and has become to its at And it this as S.W.3d 507-08. problematic application in its broader of must now pect Phillips that be over this case. “pure ruled. that a suggesting In law” always the State’s that situation would result in a non- response argument forfeitable, prosecution, bar to categorical relief foreclosed this should be Court’s Proctor, portion Phillips this precedent Phillips the Court in of discussion unnecessary holding was to its with re broadly that Proctor rule was indicated had spect all situations the in- what it characterized as inapplicable to where category-one face Marin was at issue shows on its dictment there, running namely, of the ex violation the statute Proctor, 616-18; of new application legislation at based on the limitations. See id. affecting period. Phil Specifically, to address the limitations See at 844. S.W.2d lips, By at 611-12.1 including, only “pure law” discussion in Phillips, dicta, language ap broader that would I accordingly and would reverse the court ply category-three rights even Marin appeals’ determination that the trial that were not at issue in this court jurisdiction lacked over Heilman’s portion was inconsistent with case. Because the majority opinion ad- 617-18; Proctor, Proctor. See id. at 967 dresses beyond matters that are scope I disagree that this broad proper review and resolves Heilman’s language necessarily er should be inter claim on the basis of an unwarranted re- preted constituting as part of the Court’s hashing principles, I re- Phillips given that the facts of spectfully dissent. ordinary that case did not involve an stat ute-of-limitations claim. But because this

erroneous principle from was the appeals’ holding

basis for the court of jurisdiction

the trial court lacked over case,

Heilman’s I would overrule this

broader language and hold that Proctor

applies to claims an involving ordinary ENGINEERING, BRUINGTON lapse period of a limitations where there is LTD., Appellant argument no any legislation has ex tended a period, such as the presented claim here by Heilman. See ENERGY, PEDERNAL Heilman, 507-08; Proctor, L.L.C., Appellee. 967 S.W.2d at 844. No. 04-13-00558-CV.

III. Conclusion Texas, Appeals Court of unpersuaded Because I am by the ma- San Antonio. jority opinion’s determination that it is necessary to Phillips’s overrule ex post Aug. analysis in pres- order to resolve the Dissenting Opinions on Denial of ent I appeal, would adhere to stare decisis Reconsideration En Banc respect with holding until this Jan. properly upon called to consider it in a future case. I narrowly would more

limit the holding in this case to overrule majority concurring

1. This opin category-one right Court's was at issue because of the suggest legislation ions that the extending Court erred new the statute of limita deciding category-one right that a majority opin was at is if tions that case. Even the sue in Phillips's dissenting that case and that ion in was erroneous its ultimate opinion respect given was correct in its assessment to that matter clause, savings because the amended statute of limitations existence of a this case does clause, clause, savings ordinary lapse contained a legislation, savings an involve new actually of limitations any principles was at issue there. See of the constitutional this (Keller, Phillips v. deciding category- Court addressed in that a P.J., dissenting). implicated Phillips. But this Court should not one was upon dissenting limiting decide cases based principle requires how a of stare decisis opinion precedent characterized certain facts. The bot we not overrule based tom majority opinion line is that the precedent pro Phil inclusion of dicta when that lips theory decided the cedurally factually distinguishable. case under the that a

Case Details

Case Name: EX PARTE Eric Michael HEILMAN, Appellee

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 18, 2015

Citation: 456 S.W.3d 159

Docket Number: NO. PD-1591-13

Court Abbreviation: Tex. Crim. App.