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 was right.
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 that morning.
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 to overrule 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, here.
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