My criminal defense practice has grown considerably in the past two years.
So much so, in fact, that I find myself traveling all over Central and
East Texas handling cases. In the past few months, I have been to Houston,
Austin, Georgetown, Centerville, Madisonville, Huntsville, Franklin, Caldwell,
and Richmond. I’ve put almost 10,000 miles on the new car I bought
just three months ago.
This past Thursday, I found myself in Beaumont, Texas,
on my birthday, to argue a case before the Beaumont Court of Appeals. I drove in to Beaumont
the night before to get away from the hustle of my law office so that
I could spend several uninterrupted hours preparing for the arguments,
which were scheduled at nine the next morning.
I have always been a trial attorney. Since I left prosecution, however,
I have found myself handling appeals as well as trying cases. I love the
law and I write well, even though it is a difficult process for me. So,
I have agreed to undertake a number of appeals. It is a given in trial
work that handling appeals makes you a better trial lawyer and I have
found that to be very true. There is no experience like reading a transcript
of yourself in trial. It makes you think about what you say and how you
say it the next time you are before a judge or jury.
I recently completed an appeal to the Court of Criminal Appeals, Texas’s
highest criminal court, in a case I have written about in a previous post.
It was the “cell phone case” and I am anxiously awaiting the
Court’s decision. I think it will be significant. I recently attended
Rusty Duncan Advanced Criminal Law Seminar in San Antonio and was gratified to hear several speakers highlight the
case, State v. Granville, as one of the hot cases expected out of the
Court very soon.
But I digress. Beaumont (“Beautiful Mountain”?). It’s
an interesting city with an even more interesting legal landscape. I was
appointed by a District Judge to investigate and, if appropriate, prosecute
two Beaumont police officers for allegedly falsifying a probable cause
statement following an arrest of an alleged drug dealer. After an exhaustive
grand jury investigation, I offered the two officers the opportunity to
plead guilty to a misdemeanor charge of tampering with a governmental
record to avoid being indicted on more serious felony charges. I thought
it was the right thing to do under the circumstances. The relationship
between prosecution and the police department in Beaumont is, and has
been, toxic, largely as a result of several prosecutions of police officers
for various offenses and a scandal or two.
Both officers accepted the deal, pleaded guilty, and were sentenced to
deferred adjudication, meaning that they would not be convicted of any
offense if they successfully completed the probation period. As a part
of the agreement, I required that they waive any claim that either may
have had to invoke the statute of limitations. The statute of limitations
for the felonies they were facing was three years, but the statute of
limitations for the offense to which they pleaded guilty was two years.
Depending on how you looked at the facts, an argument could have been
made that the statute of limitations had passed on the misdemeanor charges.
But plea bargains are about compromise and defendants routinely waive
even the most important constitutional rights (trial by jury, the right
to remain silent, the right to confront witnesses, the right to an attorney,
among others) to obtain the benefit of a better deal than they think they
can get from a jury or judge. Without such waivers, there would be no
plea bargaining. Without plea bargaining, our justice system would collapse.
The officers successfully completed the deferred adjudication probation
period and were discharged. About a year ago, one of the officers filed
an application for writ of habeas corpus claiming that the court did not
have jurisdiction to receive his plea of guilty because…wait for it…the statute of limitations had passed and the court had no jurisdiction.
As I said in my brief to the Court of Appeals,
no good deed goes unpunished.
Ultimately, the County Court at Law judge hearing the application for writ
of habeas corpus granted relief, vacated the deferred adjudication order,
and dismissed the case against the officer. I appealed the Court’s
decision to the Beaumont Court of Appeals, because I believe the judge,
respectfully, was wrong. In an interesting twist, I appealed as the State
of Texas as I had been appointed Criminal District Attorney Pro Tem following
the recusal of the Jefferson County Criminal District Attorney. So, at
least for this case, I’m back on the other side: prosecution.
We argued the case before a three-judge panel of the Court of Appeals.
I argued for the State of Texas as the appellant and Stanley Schneider,
a well-known and very capable appellate attorney out of Houston, argued
for the defendant, as appellee. I spoke first for about 16 minutes followed
by Mr. Schneider. Because I was arguing as the appellant, I argued last
The Justices of the Court asked a lot of very pertinent questions. It always
seems to work out that way. I spent hours preparing my outline of my argument
and never got to look at it once. I like it that way. The key, I think,
to a successful argument is simply to know the facts, the record of the
court, and the law…cold.
The issue is simple for the Court: can the statute of limitations be waived
by agreement of the parties? At the time of the plea, a case called
Proctor v. State, out of the Court of Criminal Appeals, made the answer pretty clear:
yes. However, a case that came out six months after the plea, Phillips v.
State (also the Court of Criminal Appeals), made it a much more difficult
call for the Court of Appeals.
It is a significant question. Can a defendant facing more serious charges
agree to waive his claim to invoke the statute of limitations to benefit
himself? Depending on the answer from the Court of Appeals, some future
defendant wishing to get out from under a felony charge may not have that
option. It may be a win for the defendant in this case, but a big loss
in the future for other defendants hoping to better their positions in
We’ll see what the Court says. Regardless of the outcome out of the
Court of Appeals, the case is almost certain to be appealed to the Court
of Criminal Appeals for the definitive answer. At least until the next opinion.
And to celebrate my birthday? I went to Waffle House. In Beaumont.