Some time ago, in a legal jurisdiction far, far away – okay, Beaumont
– I was appointed Jefferson County Criminal District Attorney Pro
Tem to present to a grand jury cases against two Beaumont police officers
for allegedly tampering with governmental records. The case arose out
of an undercover drug sting involving a defendant selling drugs to a confidential
informant. It was a set-up deal, carefully planned in advance by the Beaumont
Police Department. The two officers I prosecuted were part of the operation
and had a very specific duty, to wait for a signal that the drug deal
had occurred, follow the suspect a safe distance from the scene of the
drug deal, stop, and arrest the suspect. However, the drug transaction
went awry when the suspect, presumably spooked by the presence of another
person with the confidential informant, decided to pass the two by and
forgo the transaction. He was pursued nevertheless in a chase that ended
with the suspect crashing into a utility pole. Drugs and a large amount
of cash were seized from the suspect’s vehicle. After a failed motion
to suppress, he was sentenced to seven years in prison.
In the paperwork filled out by the officers following the arrest, not one
word was mentioned about the planned undercover transaction. To look at
the paperwork after the arrest, it appeared as if the officers were just
driving by, saw a suspicious vehicle, and entered the scene causing the
suspect’s vehicle to drive off in a hurry.
After it came to light in a handwritten motion for new trial by the suspect’s
attorney, the district judge who had initially denied the motion to suppress,
immediately granted a new trial. The case came to me after the Criminal
District Attorney’s Office recused itself because an assistant criminal
district attorney would be a material witness in any prosecution.
I presented the case to a grand jury over several days after a months-long
investigation by the Texas Rangers. At the conclusion of the grand jury
session, I offered the two officers the opportunity to plead guilty to
misdemeanor charges of tampering with a governmental record (the probable
cause statement filled out by the officers to support the arrest) instead
of being indicted for felonies. What’s more, I offered them both
deferred adjudications, a type of probation that, if successfully completed,
does not result in a conviction. After about eight days, the officers
appeared in court with their attorneys, entered their pleas of guilty,
and were placed on one-year deferred adjudications.
An explicit stipulation of the plea agreement was that the two officers had to,in writing and on the record, waive any claim they may have had that the statute of limitations on
the misdemeanor charges had lapsed. The statute of limitations for a felony
charge in this case would have been three years and we had plenty of time.
However, the statute of limitations for a misdemeanor is only two years
and, arguably, the statute of limitations had passed two months prior
to the pleas. Both officers waived the statute of limitations in writing
and on the record.
At the time of the plea, a case out of the Court of Criminal Appeals styledProctor
v. State was the law in Texas.
Proctor held that the statute of limitations was a defensive issue that had to
be raised by a defendant or it was waived. And certainly, if a defendant
expressly waived it, the right to assert a statute of limitations defense
was waived. Then, about six months after the pleas in Beaumont, the Court
of Criminal Appeals issued a new ruling on the nature of statute of limitations
defenses. That case was
Phillips v. State. In
Phillips, the Court crafted a confusing distinction between cases in which the
statute of limitations could be waived and cases in which it could never
be waived, even by the agreement of the parties. The distinction was whether
the face of the charging instrument (an indictment or information) reflected
that the case was brought after the statute of limitations had expired,
which they called a “pure law” statute of limitations defense,
and a case in which it was not clear from the face of the charging instrument
that the statute of limitations had passed when the case was filed. The
Court termed this a “factual limitations defense” and ruled
that, if not asserted by the defendant, or if the defendant expressly
waived it, then the defendant waived the issue for good.
So, about six months after the
Phillips case was handed down, and after both of the defendants had completed their
deferred adjudications and had been discharged, one of them filed a writ
of habeas corpus alleging that he was denied the effective assistance
of counsel and that his plea was involuntary. About an hour before I arrived
in Beaumont for a hearing on the issue, I received a call from the judge
in the case. The judge advised me that he thought that “we may have
been too hasty” when we plead the defendants guilty and that he
was concerned that he didn’t actually have jurisdiction two years
before to hear the pleas in the first place. When I arrived, I asked the
judge for the opportunity to brief this “out of the blue”
issue (which the defense attorney had not even raised). The judge allowed
me 30 days to respond. After trading briefs back and forth, the judge
finally issued his ruling granting the writ of habeas corpus on the statute
of limitations/jurisdiction issue and vacating the original order placing
the defendant on deferred adjudication.
In effect, the judge voided everything we had done two years prior.
So, I appealed. I have previously written in The Atticus Files about my
adventure arguing before the Beaumont Court of Appeals (just a floor above
the court in which we originally plead the cases) on my birthday, followed
by a lonely meal (did I mention that it was my birthday?) in a Waffle House.
In my appeal before the Court of Appeals, I asserted several points. First,
that even under
Phillips, the plea was still good because our case fell under the “factual
limitations” defense. That is, because I had left out the date of
the offense on the charging instrument, you could not tell from its face
that the statute of limitations had passed. I never got anywhere with
this argument, not in the Court of Appeals or in the Court of Criminal Appeals.
Second, I argued that the defendant was “estopped” from complaining
about the statute of limitations issue because he had bargained for it,
pleaded guilty, and accepted the benefit of the deal.
I told the Court of Appeals in my argument that this fact scenario was
just not what the Court of Criminal Appeals was talking about in
Phillips. I thought the argument went well and was optimistic.
My birthday gift from the Beaumont Court of Appeals? A 3-0 opinion rejecting
my arguments and upholding the decision of the trial court.
So I appealed again. This time to the highest criminal court in Texas,
the Court of Criminal Appeals. The same Court that issued the
Phillips opinion that was my undoing in the lower courts.
This was an important issue. If the ruling stood, then defense attorneys
and prosecutors across Texas would no longer be allowed to resolve felony
cases with a misdemeanor plea to a lesser included offense if the two-year
statute of limitations on the misdemeanor had expired,
even if both sides wanted to resolve the case in that manner. As both a long-time prosecutor and a defense attorney, I can unequivocally
state that this would be a huge problem.
Appreciating that the opinion out of the Beaumont Court of Appeals could
affect cases all over Texas, I reached out to the State Prosecuting Attorney’s
Office. Not many people, even attorneys, know about this agency. With
only four or five employees, it is the smallest state agency in Texas.
But, they have a very big job: to monitor all the opinions that come out
of the 14 courts of appeals in Texas to identify those opinions that could
affect the law and cases all over Texas. If they identify a case that
has state-wide implications, they can enter the case and seek review before
the Court of Criminal Appeals by filing a petition for discretionary review (PDR).
The Court of Criminal Appeals takes only the cases it wants to take, like
the U.S. Supreme Court. Knowing that the issues in my case were critically
important across the State, I called the State Prosecuting Attorney’s
Office. Assistant State Prosecuting Attorney John Messinger answered.
John is a really smart and decent guy. I knew John from a prior case just
months before in which I argued before the Court of Criminal Appeals for
the Defendant and he argued for the State. The case was
State v. Granville, the “cell-phone” case which held that police officers needed
a search warrant before looking through the cell phone of an inmate.
After our arguments in
Granville, I had a lot of respect for John. He was thorough, extremely knowledgeable,
and a complete gentleman. As it turned out, John had handled the
Phillips case and was still stinging from the loss. When I reached him by phone,
John told me that he already had a copy of the Beaumont opinion on his
desk, agreed with me that it was a decision that should not go unchallenged,
and saw the case as a perfect example of why
Phillips was wrongly decided. The State Prosecuting Attorney’s Office was
on the case.
John filed a petition for discretionary review. Despite a vociferous response
from the defense attorneys on the other side, the Court of Criminal Appeals
quickly accepted the case. Both sides briefed the issues thoroughly. John
wrote a great brief and was very gracious in going over it with me and
incorporating my suggestions and revisions. After briefs were submitted,
the Court advised us that no oral arguments would be allowed.
And then we waited.
And waited. The Court took its time. More than a year, in fact. Obviously, I mused,
the issue was being hotly debated among the judges of the Court. And I
As I was waiting in line with my family to get on a ride at the Wizarding
World of Harry Potter in Orlando this past Spring Break, I checked my
phone and saw that I had received a notice from the Court of Criminal
Appeals. They hand down cases every Wednesday morning and I had been checking
every Wednesday morning. The Court had handed down the opinion earlier
And we won. Actually, we won big. The Court completely overruled thePhillips opinion and reversed the Beaumont
Court of Appeals and the Jefferson County trial court.
It was a 6-3 majority opinion with Judge Michael Keasler writing for the
majority, joined by five other judges. However, The Court also handed
down a concurring opinion and three separate dissenting opinions. Interestingly,
even the dissenting judges, all three of them, would have reversed the
Beaumont Court of Appeals. The disagreement was whether it was necessary
Phillips in order to grant the relief we sought. A majority of the judges believed
that, in order to grant the relief we were seeking, to reverse the Beaumont
Court of Appeals, the
Phillips case had to go. In his concurrence, newly-elected Judge David Newell wrote:
“The majority is correct; either this case goes or
Phillips does. Like the majority, I vote that it’s
Phillips.” You go, Judge Newell! (I like Judge Newell.)
The bottom line is that a claim by a defendant that the statute of limitations
bars prosecution of a case must be raised by a defendant or it can be
waived forever. Certainly, where the defendant expressly waives the statute
of limitations so that he can benefit from pleading to a lesser included
misdemeanor, he cannot then come back after he has received the benefit
of the bargain and ask for “do-overs.”
And so, the case goes back to the Beaumont Court of Appeals. Which means
I go back to Beaumont. To the Waffle House. Probably on my birthday.
You can read the majority opinion,
Ex Parte Heilman,
And if you’re really into this kind of stuff, you can read the concurring
opinion and the dissents by clicking the links below:
Judge Newell’s Concurring opinion
Judge Alcala’s dissent
Judge Meyers’s dissent
Judge Johnson’s dissent