                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-13-00041-CR
                             ____________________

                        BEULAH JOHNSON, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

             On Appeal from the County Court at Law No. 3
                        Jefferson County, Texas
                        Trial Cause No. 296066
__________________________________________________________________

                          MEMORANDUM OPINION

      We withdraw our opinion of November 4, 2015, and substitute this opinion

in its place. Beulah Johnson pleaded guilty to misdemeanor theft, and the trial

court sentenced Johnson to 180 days in jail. Johnson appealed, contending that her

prosecution was statutorily barred and her right to counsel was violated. Johnson v.

State, No. 09-13-00041-CR, 2014 WL 1857694, at *1 (Tex. App.—Beaumont May

7, 2014), vacated, Johnson v. State, No. PD-0748-14, 2015 WL 1954102, at *1

(Tex. Crim. App. Apr. 29, 2015) (not designated for publication). This Court

                                         1
overruled Johnson’s contention that her right to counsel had been violated, but

found that Johnson’s prosecution was barred by the applicable statute of limitations

because the information did not contain tolling language. Id. Upon appeal by the

State from our judgment, the Court of Criminal Appeals noted that this Court had

issued its opinion without the benefit of Ex parte Heilman, 456 S.W.3d 159 (Tex.

Crim. App. 2015), vacated our judgment, and remanded the cause for this Court

“to consider the effect of Heilman, if any, on [our] reasoning and analysis in this

case.” Johnson, 2015 WL 1954102, at *1. We now undertake to do so.

                                  EX PARTE HEILMAN

      In Heilman, the defendant pleaded guilty to misdemeanor tampering with a

governmental record after the applicable two-year statute of limitations had

expired. Heilman, 456 S.W.3d at 160. Heilman signed a written waiver that stated,

“I hereby waive all statute of limitations[,]” [sic] and he also signed a deferred

adjudication   order   that   stated,   “DEFENSE     WAIVES      STATUTE       [OF]

LIMITATIONS[.]” Id. at 161. “In return for Heilman’s plea, the State agreed not

to pursue indictment for state-jail felony tampering with a governmental record.”

Id. at 160. Heilman subsequently filed an application for writ of habeas corpus, in

which he argued that his statute of limitations defense was a category-one absolute

right. Id. at 160-61. The habeas court granted relief, and this Court affirmed the

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habeas court’s decision. Id. at 161. The Court of Criminal Appeals held that “the

right at issue is a category-three forfeitable right[.]” Id. at 161. In so holding, the

Court of Criminal Appeals noted:

      [i]t would be easy to misinterpret a statute-of-limitations defense as a
      uniquely fundamental right, given that when it is properly raised, it
      leads to only one result: dismissal. But its true nature -- a mere
      legislative “act of grace” -- is modest, especially when compared to
      weightier, constitutionally based rights that we have nonetheless
      deemed forfeitable.

Id. at 166.

                           APPLICATION OF HEILMAN

      An information or indictment for a Class B misdemeanor may be presented

within two years from the date of the commission of the offense, but not afterward.

Tex. Code Crim. Proc. Ann. art. 12.02(a) (West 2015). In this case, the information

was presented on January 9, 2013, more than two years after the theft was

committed. As we noted in our previous opinion, the record suggests that the

original felony charge of forgery against Johnson was dismissed, followed by a

new charge for misdemeanor theft. Johnson, 2014 WL 1857694, at *1. The plea

admonishments signed by Johnson contain the following language: “I give up all

rights given to me by law, whether of form, substance[,] or procedure.” In this

case, as in Heilman, Johnson received a benefit from pleading guilty to a

misdemeanor offense. See Heilman, 456 S.W.3d at 160, 168. Johnson had every
                                          3
right to waive her limitations defense as part of her plea agreement, and we hold

that she did so by signing the written plea admonishments which included a waiver

of “all rights given . . . by law, whether of form, substance[,] or procedure.” See id.

at 169. Accordingly, because Johnson waived her statute of limitations defense as

part of her plea bargain agreement, we affirm the trial court’s judgment of

conviction.1

      AFFIRMED.




                                              ________________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice

Submitted on July 28, 2015
Opinion Delivered November 5, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




      1
       The portion of our previous opinion which overruled Johnson’s issue
regarding an alleged violation of her right to counsel is unaffected by either the
Court of Criminal Appeals’s opinion or this opinion.
                                          4
