Opinion issued February 25, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00643-CR
                           ———————————
                      HAROLD T. SAMUELS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Case No. 1401787


                         MEMORANDUM OPINION

      Samuels pleaded guilty to felony misapplication of fiduciary property. 1 The

indictment charged him with misapplying a fiduciary’s property for a continuous

period six to nine years before he was charged. On appeal, Samuels argues, for the


1
      TEX. PENAL CODE ANN. § 32.45(b)(6) (West Supp. 2015).
first time, that he could not be charged with this offense because the statute of

limitations had expired. Because he forfeited his statute-of-limitations defense by

entering a guilty plea, we affirm.

                                     Background

      In 2013, Samuels was indicted for felony “misapplication of fiduciary

property,” a crime with a statute of limitations of seven years, for misapplying over

$200,000 under an agreement he had with a person to whom he indisputably owed

a fiduciary duty. See TEX. PENAL CODE ANN. § 12.01(3)(A) (West Supp. 2015).

The alleged misapplication began in 2004 and continued through 2007.

      Samuels pleaded guilty to the offense. In the waivers he signed when he

pleaded guilty, Samuels agreed: “I give up all rights given to me by law, whether

of form, substance or procedure.”

      After a pre-sentence hearing, the trial judge sentenced Samuels to 14 years

in jail and a fine of $10,000. Samuels appeals his conviction.

                     Statute-of-Limitations Defense Waived

      In his sole issue,2 Samuels argues that his “indictment alleges dates that are

outside of the statute of limitations. . . . Therefore, said Indictment was and is

2
      After his attorney filed a brief in this case, Samuels filed numerous letters with
      this Court. Because a criminal defendant has no right to hybrid representation on
      appeal, we consider only the issues raised in Samuels’s counsel’s brief and do not
      address the points raised in the letters. See Rudd v. State, 616 S.W.2d 623, 625
      (Tex. Crim. App. 1981); Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App.
      1977); see also Giles v. State, No. 01-08-00410-CR, 2010 WL 2133893, at *1

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defective on its face.” The State argues that Samuels did not object to this alleged

error before his conviction and thus “forfeited his right to complain about the

statute of limitation . . .” on appeal.

       For a party to preserve an issue for appeal, it must make a timely, specific

objection on the alleged error and obtain a ruling. See TEX. R. APP. P. 33.1(a). Even

a potential constitutional violation can be waived if the party fails to object in the

trial court. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

       Some rights, however, are so fundamental that they cannot be waived. In

Marin v. State, the Court of Criminal Appeals outlined three categories of rights.

851 S.W.2d 275, 279 (Tex. Crim. App. 1993). The first category consists of

“absolute requirements and prohibitions,” which are fundamental and cannot be

waived. Id. The second category consists of “rights of litigants which must be

implemented by the system unless expressly waived.” Id. The third consists of

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

       Rights in the first category cannot be waived; thus violations of those rights

may be raised for the first time on appeal. Id. at 280. Rights in the second category

are never deemed to have been waived unless the defendant “says so plainly,

freely, and intelligently, sometimes in writing and always on the record.” Id. If no

such waiver is found on the record, a violation of that right may be raised for the

       (Tex. App.—Houston [1st Dist.] May 27, 2010, pet. ref’d) (mem. op., not
       designated for publication).

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first time on appeal. But the third-category Marin rights can be forfeited by the

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.” Id. at 279–80.

      A statute-of-limitations defense is a “category-three forfeitable right[] . . . . ”

Ex parte Heilman, 456 S.W.3d 159, 169 (Tex. Crim. App. 2015). Thus, the

defendant waives that defense by entering a guilty plea. Id.; see Lee v. State, No.

09-13-00569-CR, 2015 WL 3407001, at *1 (Tex. App.—Beaumont May 27, 2015,

no pet.) (mem. op., not designated for publication) (holding that defendant must

object to indictment “before the date on which the trial on the merits commences”

or else “complaint is waived and may not be raised on appeal”).

      Samuels relies on Phillips v. State to argue that a statute-of-limitations

defense is a first-category Marin right that cannot be waived. 362 S.W.3d 606,

612–13 (Tex. Crim. App. 2011). In Phillips, the Court of Criminal Appeals held

that the right to be free from an ex post facto law is a first-category Marin right. Id.

at 611–12. In that case, the statute-of-limitations was extended by the Legislature

after the defendant committed the alleged offense; the defendant’s prosecution was

barred before the extension was enacted but was no longer barred once the statute

of limitations was extended. Id. at 612. Such an extension, however, could not

allow the State to prosecute the defendant whose crime, at the time of the



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extension’s passage, was barred from prosecution by the old statute of limitations,

without violating the defendant’s right against an ex post facto law. Id. at 612–13.

Thus, the Court held that a statute-of-limitations defense, raised in that context—a

“pure law challeng[e] [to] an indictment that shows on its face that prosecution is

absolutely barred by the statute of limitations”—is a category-one Marin right that

cannot be waived. Id. at 617 (internal parenthesis omitted).

      The Phillips distinction, however, was overruled by the Court of Criminal

Appeals in Heilman. 456 S.W.3d at 168–69 (“[W]e will no longer unquestioningly

distinguish between factual and pure-law limitations defenses. . . . [B]oth are

Marin category-three forfeitable rights . . . .”). A statute of limitations, the Court

noted, is a “mere legislative act of grace . . . .” Id. at 166. As a category-three

forfeitable right, it could be waived. Id.

      The Heilman Court used the example of plea bargaining to highlight the

unworkability of the previous Phillips exception. Plea bargains often “contain a

wide variety of stipulations and conditions that allow the state to tailor conditions

in order to reach agreement with the defendant.” Id. at 167. Allowing a defendant

to object to a plea bargain on statute-of-limitations grounds would allow a

defendant “to reap the benefits” of a plea deal that offers the defendant “a lighter”

sentence for pleading guilty to a lesser, time-barred offense in exchange for the

State dropping a different offense, with a higher sentence, that is not time-barred.



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Id. The defendant could then appeal the plea “seek[ing] the judiciary’s assistance

in reneging” by attacking the “illegal, lighter sentence” to which he pleaded guilty

and end up with no conviction after succeeding on his statute-of-limitations

defense on appeal. Id. Noting that the “[c]ourts have long recognized the important

role plea agreements play in our criminal-justice system,” the Court reasoned that

the best way to prevent this gamesmanship was to require the defendant to raise the

statute-of-limitations defense before pleading guilty. Id. at 166.

      This case falls squarely within the rule of Heilman. Samuels pleaded guilty

and never raised the statute-of-limitations defense in the trial court. He expressly

waived “all rights given to me by law, whether of form, substance or procedure”

before pleading guilty. By pleading guilty, he forfeited his right to the statute-of-

limitations defense.

      The trial court, thus, did not err in its judgment.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               Harvey Brown
                                               Justice

Panel consists of Justices Radack, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).


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