            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-1591-13



                  EX PARTE ERIC MICHAEL HEILMAN, Appellee



            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE NINTH COURT OF APPEALS
                          JEFFERSON COUNTY

              M EYERS, J., filed a dissenting opinion.

                           DISSENTING OPINION

       Today the majority overrules our prior decision in Phillips v. State, 362 S.W.3d 606

(Tex. Crim. App. 2011), and determines that Appellant is not entitled to relief on his statute

of limitations claim. With today’s decision we are continuing down an unreasonable path of

placing the entire burden on the defendant to complain of statute of limitations issues. The

statute of limitations should not be a defensive issue, and I believe that the case we should

actually be overruling today is Proctor v. State, 967 S.W.2d 840, (Tex. Crim. App. 1998).

       In Proctor we changed the law concerning the statute of limitations and held, for the

first time, that limitations is a rule that must be implemented only upon the request of the
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defendant, rather than it being an absolute requirement that must be proved by the State in

every criminal prosecution. Id. at 844. However, making the statute of limitations a defensive

issue was problematic then, and it is problematic now. Defensive issues should be those that

require a defendant to show that he is not guilty of a crime. The statute of limitations has

nothing to do with a defendant’s guilt–it relates only to the State’s timely filing of a case–and

therefore, the defendant should not bear the heavy burden of invoking it. The statute of

limitations is meant to be something the State must prove in order to prosecute, much like

it must prove that a crime took place in a particular county. T EX. C ODE C RIM. P ROC. art.

13.17. Further, the State is allowed to allege in the indictment that the crime took place “on

or about” a certain date, so long as that date is “anterior to the presentment of the indictment,

and not so remote that the prosecution of the offense is barred by limitation.” T EX. C ODE

C RIM. P ROC. art. 21.02. Requiring that the dates the State alleges not be barred by limitation

is at odds with holding that the State must actually prove that the offense occurred within the

statute of limitations only if the defendant raises the issue. See Proctor v. State, 967 S.W.2d

at 847 (Meyers, J., dissenting).

       The present problems surrounding the statute of limitations arose when this court

decided to change the law and make limitations a defensive issue. Proctor is a not a well-

reasoned or substantiated opinion, and was decided the way it was only in order to keep the

convictions in the case from being overturned. Today, rather than overruling Phillips, we

should be correcting the mistake made in Proctor and return to considering the statute of
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limitations an absolute requirement that is the State’s burden to prove. Therefore, I would

overrule Proctor and remand this case to the court of appeals to be examined in light of

Yount v. State, 853 S.W.2d 6 (Tex. Crim. App. 1993), in which we held that a defendant who

requested a jury instruction on a lesser-included offense could not later complain that his

conviction of that offense was barred by limitations. For the foregoing reasons, I respectfully

dissent.




Filed: March 18, 2015

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