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



                  EX PARTE ERIC MICHAEL HEILMAN, Applicant

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

              N EWELL, J., filed a concurring opinion in which K ELLER, P.J. and
H ERVEY, J., joined.

       I agree that applicant forfeited his right to complain about the limitations bar on his

misdemeanor conviction for tampering with a governmental record when he pleaded guilty

to the untimely charge in exchange for the State’s agreement to forgo indictment on a timely

state jail felony charge. I join the majority opinion because I believe the majority is exactly

right that this case is in irreconcilable conflict with Phillips v. State and that Phillips should

be overruled. I write separately to explain why I believe the attempts to harmonize this case

with Phillips fail.

       One argument to save Phillips hinges on the word “reparable.” In Phillips, the

majority drew a distinction between statute of limitations defenses based upon facts and those
                                                          Heilman Concurring Opinion - Page 2

based upon “pure law.” Phillips v. State, 362 S.W.3d 606, 617 (Tex. Crim. App. 2011).

According to the Court, the reason for this distinction was that a pleading that gives rise to

a limitations factual defense is “reparable,” while a pleading that gives rise to a statute-of-

limitations bar is not. Id.

       “Reparable” means capable of being mended or put into sound condition or capable

of being remedied or made good. W EBSTER’S T HIRD N EW INTERNATIONAL D ICTIONARY

1923 (2002). But the pleading in this case was not capable of being put into sound condition

or made good. The misdemeanor information in this case alleged that the offense was

committed on October 13, 2008. It was filed on December 22, 2010. There is no tolling

language. There is no intervening charging instrument. Under Article 12.02 of the Texas

Code of Criminal Procedure, the statute of limitations for this offense is two years. T EX.

C ODE C RIM. P ROC. A NN. art. 12.02 (West 2008). Appellant had an absolute right to quash

the information in this case.

       Applying Phillips v. State, this misdemeanor information was absolutely barred by

100% pure law with no additives or preservatives. Phillips, 362 S.W.3d at 617. As this

Court held in Phillips:

              But Proctor governs statute-of-limitations defenses that are
              based on facts (challenging a pleading that includes a “tolling
              paragraph,” “explanatory averments,” or even “innuendo
              allegations,” that suffice to show that the charged offense is not,
              at least on the face of the indictment, barred by limitations), not
              pure law (challenging an indictment that shows on its face that
              prosecution is absolutely barred by the statute of limitations).
                                                           Heilman Concurring Opinion - Page 3

Id. And in this case, the State’s ability to proceed with another offense in another court did

nothing to mend the misdemeanor case; the trial judge had to resurrect it.1

       I also disagree that Phillips can be limited to only address claims of ex post facto

violations primarily because there was no ex post facto legislation at issue in Phillips. The

Court reached its holding in response to the State’s argument that this case did not involve

ex post facto legislation because the statute was written prospectively. Phillips, 362 S.W.3d

at 617; see also Acts 1997, 75th Leg., Ch. 740, § 3 (“The change in the law made by this Act

does not apply to an offense if the prosecution of the offense became barred by limitation

before the effective date of this Act. The prosecution of that offense remains barred as

though this Act had not taken effect.”). In essence, the State argued that the statute, by its

own terms, did not apply, so there was only a “plain vanilla limitations claim” rather than an

issue of ex post facto legislation. Phillips, 362 S.W.3d at 624 (Keller, P.J., dissenting). This

Court’s response was telling:

               This distinction is irrelevant because the ex post facto result is
               the same–the retroactive application here “revived” a previously
               barred prosecution.

Id. at 617. That “irrelevant” distinction is now the centerpiece of the argument to keep

Phillips on life support.

       The Court relied upon Carmell v. Texas to argue that a judicial application of a statute



       1
         “Resurrection” means the act or fact of rising again from an inferior state (as death,
decay, disuse) into a superior one. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1937
(2002).
                                                             Heilman Concurring Opinion - Page 4

that was not expressly and facially retroactive violated the prohibition against ex post facto

laws, but the statute at issue in Carmell changed the quantum of proof in pending cases.

Carmell v. Texas, 529 U.S. 513, 530-31 (2000). Contrary to the Phillips majority’s reading

of Carmell, it was the legislative act in Carmell that opened the door to the ex post facto

violation, not the erroneous judicial application of that act.2 If there had been only a

retrospective judicial application at issue in Carmell, then the United States Supreme Court’s

decision in Johnson–two weeks after Carmell was decided–would make no sense. In

Johnson, the United States Supreme Court held that there was no ex post facto question

where a statute by its own terms did not apply retroactively; the only question in that situation

was whether the old statute authorized the trial court’s action. Johnson v. United States, 529

U.S. 694, 702-03 (2000); see also Ortiz v. State, 93 S.W.3d 79, 91 (Tex. Crim. App. 2002).

Contrary to the majority’s reasoning in Phillips, the Supreme Court was always concerned

with ex post facto legislation, not ex post facto results.

       2
          The confusion seems to flow from mixing the different Calder v. Bull categories. The
Phillips majority regarded the statute at issue as belonging to the same Calder v. Bull category as
the statute at issue in Stogner, namely the second Calder v. Bull category where a statute
aggravated or made the crime greater than when committed. Phillips, 362 S.W.3d at 616. But
the statute at issue in Stogner was facially retroactive. Id. Consequently, the majority applied
Carmell, a case involving a statute that reduced the quantum of proof necessary to support a
conviction in a pending case–a fourth Calder v. Bull category–to justify the holding that a purely
judicial application of a statute violates the prohibition against ex post facto legislation. Id. at
617 (“And, in Carmell, the Supreme Court held that the retroactive application of statutes that
are not expressly and facially retroactive nonetheless violates the Ex Post Facto Clause.”). By
comparing apples to oranges, the majority in Phillips obscured the fact that neither category
involves a pure retroactive judicial application of a facially prospective statute like the situation
present in Phillips. Simply put, a successful ex post facto claim invalidates a statute, not the
judicial application of it. Because there was no ex post facto statute involved in Phillips, any
discussion of an ex post facto violation was necessarily dicta.
                                                              Heilman Concurring Opinion - Page 5

       To be clear, I do not understand the majority to hold that a defendant must object to

preserve a claim that a retrospective statute violates the constitutional prohibitions against

ex post facto legislation. Nor do I read the majority’s holding in this case to say that an ex

post facto violation is anything but fundamental error. But I join the majority opinion

because Phillips did not involve ex post facto legislation; it involved a “plain-vanilla

limitations claim.” Phillips, 362 S.W.3d at 624 (Keller, P.J., dissenting). This Court held

in Proctor that such claims are forfeitable, and I do not believe the limitations on the scope

of Proctor to “fact-based” limitations defenses was warranted.3

       This Court should not frivolously overrule established precedent. Paulson v. State,

28 S.W.3d 570, 571 (Tex. Crim. App. 2000). But stare decisis is not an inexorable

command. While there is a strong presumption in favor of established law, this Court may

reconsider its precedent when: (1) the original rule or decision was flawed from the outset;

(2) the rule’s application produces inconsistent results; (3) the rule conflicts with other

precedent, especially when the other precedent is newer and more soundly reasoned; (4) the

rule regularly produces results that are unjust, that are unanticipated by the principle


       3
         Judge Meyers argues in his dissent that this Court should overrule Proctor altogether
rather than Phillips. Neither party argues that such action is necessary to the resolution of the
case. More importantly, doing so would not resolve this case because Judge Meyers’ reliance
upon Yount overlooks that the charging instrument in Yount was not subject to an absolute
limitations bar. State v. Yount, 853 S.W.2d 6, 7 (Tex. Crim. App. 1993) (defendant indicted for
involuntary manslaughter and requested jury instruction on lesser-included offense of DWI even
though it was barred by the statute of limitations). Had the case proceeded in felony court rather
than misdemeanor court, then a pure application of Yount uninfluenced by Proctor would allow
for the denial of relief. That Phillips would require the denial of relief in felony court but not in
misdemeanor court further emphasizes to me how unworkable the holding in Phillips is.
                                                            Heilman Concurring Opinion - Page 6

underlying the rule, or that place unnecessary burdens on the system; and (5) the reasons that

support the rule have been undercut with the passage of time. Ex parte Lewis, 219 S.W.3d

335, 338 (Tex. Crim. App. 2007). Adhering to such precedent does not promote judicial

efficiency and consistency, encourage reliance upon judicial decisions, or contribute to the

integrity of the judicial process. Paulson, 28 S.W.3d at 571.

       I join the majority because I believe Phillips qualifies as that type of precedent. That

almost every member of this Court agrees to a result in contravention of the one Phillips

clearly requires further demonstrates the unworkability of Phillips.4 The majority is correct;

either this case goes or Phillips does. Like the majority, I vote that it’s Phillips.




Filed: March 18, 2015
Publish




       4
         While Judge Johnson dissents, she agrees that appellant is not entitled to relief. Judge
Meyers does not quite say in his dissent that appellant is estopped from bringing this claim on
appeal, but his reliance upon Ex parte Yount and his call to overrule Proctor seems to suggest it.
Judge Alcala’s call to only overrule part of Phillips further demonstrates to me that Phillips was
built upon an unstable foundation.
