Ex parte Heilman

456 S.W.3d 159

Ex parte Eric Michael Heilman, Appellee

NO. PD–1591–13

Court of Criminal Appeals of Texas.

DELIVERED: March 18, 2015

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

John R. Messinger, Assistant State Prosecuting Attorney, Lisa C. McMinn, State's Attorney, Austin, for State of Texas.

OPINION

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

Eric Heilman pleaded guilty to misdemeanor tampering with a governmental record after the relevant two-year statute of limitations had expired. In return for Heilman's plea, the State agreed not to pursue indictment for state-jail felony tampering with a governmental record. In an application for a writ of habeas corpus, Heilman challenged the trial court's jurisdiction to accept his plea to the time-barred offense, arguing that his “pure law” limitations defense is a category-one absolute right under Marin v. State .¹ The habeas court granted relief, and the court of appeals affirmed. We hold that the right at issue is a category-three forfeitable right and reverse the judgment of the court of appeals.

I. Facts and Procedural History

In October 2008, Heilman was serving as an officer with the Beaumont Police Department. Along with another officer and a confidential informant, Heilman took part in a failed undercover narcotics sting targeting a suspected drug dealer. Although no transaction occurred, when the suspect began to leave, Heilman pursued and arrested him, seizing cash and a large amount of cocaine. But when Heilman drafted his probable-cause affidavit on October 13, 2008, he failed to mention either the undercover operation or his confidential informant.

When that affidavit's veracity was later challenged, a district attorney pro tem began a grand-jury investigation of Heilman. During the entire investigation, no indictment, information, or criminal complaint was ever filed against Heilman. Nevertheless, on December 22, 2010, Heilman pleaded guilty on a misdemeanor information of tampering with a governmental record in return for the State agreeing to (1) forgo indictment on the state-jail felony offense and (2) not oppose early termination of his one-year deferred-adjudication sentence after six months. Because Heilman's offense of tampering with a governmental record—a Class A misdemeanor—carried only a two-year statute of limitations,² Heilman also signed a written waiver stating: “I hereby waive all statute of limitations.” Heilman also signed a Deferred Adjudication Order stating: “DEFENSE WAIVES STATUTE LIMITATIONS PER JUDGE FLORES.” On June 24, 2011, after the agreed-upon six months, the trial court terminated Heilman's deferred adjudication and dismissed the information.

Heilman subsequently filed an application for a writ of habeas corpus, citing as a collateral consequence his inability to obtain a peace officer's license and alleging an involuntary plea and ineffective assistance of counsel. He also sought findings of fact and conclusions of law that the original trial court lacked jurisdiction under Phillips v. State³ both to accept his December 2010 plea and to sentence him to deferred adjudication after the two-year statute of limitations' expiration in October 2010. The habeas judge vacated the trial court's proceedings against Heilman, concluding it lacked jurisdiction. The court of appeals affirmed, holding that the “charging instrument on its face established that the statute of limitations prohibited the State from prosecuting the defendant.”⁴

II. Analysis

The circumstances of this case force us to reconsider the nature of a statute-of-limitations defense and exactly what right it protects. And although “[o]ften it is better to be consistent than right,” we overrule precedent when the reasons for doing so are “weighty enough,” including when the precedent was “flawed from the outset” and produces “unjust” results “that place unnecessary burdens on the system.” ⁵

Heilman's reliance on Phillips v. State presents us with such a situation.

A. Marin 's Three Categories

In Marin v. State, we constructed a three-part framework to categorize the rights of our criminal-justice system:

1. “absolute requirements and prohibitions”;

2. “rights of litigants which must be implemented by the system unless expressly waived”; and

3. “rights of litigants which are to be implemented upon request.”⁶

We explained that category-one rights “are to be observed even without partisan request” and cannot “lawfully be avoided even with partisan consent.”⁷ Category-two rights, however, can be waived by right, but a litigant “is never deemed to have done so in fact unless he says so plainly, freely, and intelligently, sometimes in writing and always on the record.”⁸ Finally, a category-three right can be forfeited by a litigant “for failure to insist upon it by objection, request, motion, or some other behavior calculated to exercise the right in a manner comprehensible to the system's impartial representative, usually the trial judge.”⁹

B. Phillips v. State 's distinction between factual and pure-law limitations defenses

Under Proctor v. State, we originally held that a statute-of-limitations defense “is forfeited if not asserted at or before the guilt/innocence stage of trial,” thereby placing it in Marin 's third category.¹⁰ Yet more recently in Phillips v. State, we distinguished between two types of limitations defenses: (1) those that are “based on facts” and (2) those that are “pure law.”¹¹ Whereas the first type merely “gives rise to a limitations factual defense” because it requires factual development beyond the charging instrument, the second appears on the face of the instrument and therefore “gives rise to a statute-of-limitations bar” that constitutes a jurisdictional defect.¹² We held that, while Proctor —and therefore Marin 's third category—continued to apply to factual limitations defenses, it did not apply to those that are pure law.¹³ Therefore, a defendant could forfeit only a factual limitations defense by failing to assert it at trial.¹⁴ But a pure-law limitations defense, as a jurisdictional defect, could not be forfeited and could be raised for the first time on appeal or in a collateral proceeding.¹⁵

C. Bases of Phillips 's distinction

In making that distinction, we relied primarily on the constitutional prohibitions against ex post facto laws—found in both the federal and Texas constitutions¹⁶ —and our reasoning in Ieppert v. State.¹⁷ In that case, we clarified that the prohibition against ex post facto laws is not actually an individual right, but instead “a categorical prohibition directed by the people to their government” that cannot be waived “either individually or collectively.”¹⁸ Citing that language, we held in Phillips that the “right to be free from ex post facto laws or the ex post facto application of a law” is a Marin category-one absolute right.¹⁹

Our analysis in Phillips then cited the Supreme Court's Stogner v. California²⁰ decision to resolve the collision between the constitutional ex post facto prohibition (a category-one absolute right under Ieppert ) and a statute-of-limitations defense (originally a category-three forfeitable right under Proctor ).²¹ In Stogner, the Supreme Court held that a state statute allowing time-barred prosecutions for sex-related child abuse if “begun within one year of the victim's report” violated the Ex Post Facto Clause.²² We noted the Supreme Court's invocation of the assurances the State provides through a statute of limitations; namely that one “has become safe from its pursuit,” and that the State will “play by its own rules” and give “fair warning” to preserve exculpatory evidence.²³ Citing those assurances, we held in Phillips that a “facially retroactive law that revived a previously time-barred offense violated the Ex Post Facto Clause,” thus making a pure-law limitations defense a category-one right through application of the Ex Post Facto Clause.²⁴ Therefore, once the statute of limitations on Phillips's offenses expired, “from that day forward, prosecution of all twelve counts was forever and absolutely barred.”²⁵

D. Our decision to overrule Phillips v. State

We now conclude that Phillips 's distinction between factual and pure-law limitations defenses was in error, at least in circumstances lacking any legislative ex post facto violation. Only the legislature can violate either the federal or state Ex Post Facto Clause because—as we held in Ortiz v. State and now reaffirm—both are “directed at the Legislature, not the courts.”²⁶ Indeed, as the seminal case on the Ex Post Facto Clause—Calder v. Bull —declared, the “plain and obvious meaning and intention of the prohibition” is that “the Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it.”²⁷

Our Ortiz holding also sought to limit the effect of Ieppert, the case on which so much of Phillips 's reasoning relied. We explained that in Ieppert “we did not appear to appreciate the distinction” between the legislature and the courts due to Bouie v. City of Columbia 's due process prohibition against the judiciary “achieving, through construction of a statute, the exact same consequence that would be prohibited by the ex post facto clause if the Legislature had so acted.”²⁸ We noted that the Supreme Court in Rogers v. Tennessee had since declared that reasoning dicta—clarifying that Bouie turned only on a due process violation—and held the federal Ex Post Facto Clause inapplicable to the courts, citing the “important institutional and contextual differences between legislating, on the one hand, and common law decisionmaking, on the other.”²⁹

In concluding its analysis in Stogner, the Supreme Court struck down California's statute because it “retroactively withdraws a complete defense to prosecution after...