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



                                       THE STATE OF TEXAS

                                                     v.

                              ERIC MICHAEL HEILMAN, Appellee

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

        J OHNSON, J., filed a dissenting opinion.

                                 DISSENTING OPINION

        While I agree that Eric Heilman is not entitled to relief on his “statute of limitations” claim,

I cannot join the majority’s opinion or its judgment because it is neither necessary nor appropriate

to overrule our prior decision in Phillips v. State.1 Here, the defendant explicitly traded his right to

make any “statute of limitations” claim to the misdemeanor charge of tampering with a governmental

record in exchange for avoiding indictment for the corresponding state-jail felony offense that was

not time barred. Just as a defendant who requests a jury charge on a time-barred lesser-included


       1
           362 S.W .3d 606 (Tex. Crim. App. 2011).
                                                                                                                    2

offense waives his right to later claim that his conviction on the lesser offense was barred by

limitations,2 so too a defendant who expressly trades his right to a limitations claim on a

misdemeanor to avoid being charged with a felony waives his right to later claim that his conviction

was barred by limitations. Heilman might have chutzpah, but he does not have a valid limitations

claim.3

                                                              I.

          Heilman, a member of the Beaumont Police Department, was investigating a drug-trafficking

operation in October 2008. He, Officer Brad Beaulieu, and a confidential informant set up a sting

operation with a suspected drug dealer, but their target left the scene without completing the

transaction. Heilman and Beaulieu chased the suspect and arrested him. They seized cash and a

large cache of cocaine from him. But, in drafting his probable-cause affidavit, Heilman omitted any

reference to the confidential informant or the sting operation. The suspect eventually disclosed the

existence and participation of the confidential informant.

          A special prosecutor was appointed, and a grand jury investigation began. According to the

habeas court’s findings, Heilman’s depiction of the events was as follows:

          The investigation of Applicant [Heilman] continued through the fall [of 2010]. On
          November 23, 2010, Applicant is advised that the file of the Beaumont Police
          Department Internal Affairs Investigation was being subpoenaed to the Jefferson
          County Grand Jury. On December 13 or 14, Applicant was advised that the grand
          jury had met and that he had an opportunity to plead guilty to a misdemeanor or
          proceed to trial after indictment on felony charges. On December 17, 2010,
          Applicant was advised that he had until December 22, 2010, to decide whether to


          2
           See State v. Yount, 853 S.W .2d 6, 9 (Tex. Crim. App. 1993) (when defendant requested that the jury be
instructed on the lesser-included offense, he was estopped from complaining that his conviction of that lesser offense
was barred by limitations).

          3
              In fact, Heilman did not originally raise this claim; the habeas judge did.
                                                                                                        3

        enter a plea and accept the misdemeanor offer.

The Special Prosecutor filled in the events from his perspective:

        On December 14, 2010 [applicant’s original trial counsel] was advised that the grand
        jury voted unanimously to indict both Eric Heilman and Brad Beaulieu for the felony
        offenses of tampering with governmental records and, in the case of Brad Beaulieu,
        aggravated perjury. At the request of and with the consent of the grand jury, an offer
        was extended to Heilman and Beaulieu through their attorney . . . to plead guilty to
        [the] misdemeanor offense of tampering with a governmental record for deferred
        adjudication in lieu of being formally indicted on felony charges. The plea offer was
        conditioned on their express waiver of any statute of limitations claim that they may
        have regarding the misdemeanor charges to which they would plead. The grand jury
        adjourned until December 22 to allow Officers Heilman and Beaulieu to consider the
        offer.

        On December 22, Officers Heilman and Beaulieu appeared before the Court with
        new attorneys, were properly admonished, waived their rights, expressly waived the
        statute of limitations, and pleaded guilty to the misdemeanor charge of tampering
        with a governmental record. In light of the pleas, the grand jury’s term expired on
        December 31, 2010, without formally indicting either officer.

        An information charging Heilman with the misdemeanor offense was filed in the county

court on December 22, 2010. At the guilty-plea hearing on that day, Heilman and his attorney, along

with the special prosecutor and the trial judge, signed the standard written documents,

admonishments, and waivers. A handwritten sentence at the bottom of the page read, “I hereby

waive all statute of limitations.” Directly above that sentence are applicant’s initials, as well as those

of his attorney. On the official Deferred Adjudication Order, next to three of the probation

conditions, is the following statement:

        No State opposition to early termination after six months[.] Defense will not file for
        early termination before six months[.] Defense waives statute [of] limitations per
        Judge Flores[.]

        Heilman had no right of appeal and did not attempt to appeal. He followed his end of the

bargain and did not file for early termination for six months. The state followed its part of the
                                                                                                                    4

bargain and did not oppose early termination. However, four months after discharging his probation

and obtaining a Deferred Adjudication Order of Dismissal, Heilman filed an application for a writ

of habeas corpus claiming, inter alia, that he had entered an involuntary plea.

         The habeas judge, on his own, raised the issue of whether Heilman’s prosecution was barred

by the two-year statute of limitations for the misdemeanor offense of tampering with a governmental

record. Relying in part on this Court’s decision in Phillips v. State,4 he held that the two-year statute

of limitations barred applicant’s prosecution and that the agreement to waive the statute of

limitations was itself “void and a nullity.” He concluded that he did not have authority to enter a

deferred-adjudication order as a matter of law. The judge dismissed the information and vacated the

deferred adjudication order.

         The state appealed, and the court of appeals affirmed the habeas judge.

                                                         II.

         The problem with the lower courts’ reliance on Phillips is that, in Phillips, we explained that

a “matter of law” statute-of-limitations claim is one in which the charging instrument shows on its

face that the prosecution is time-barred and that the defect is not “reparable.”5 There is absolutely

nothing that the state can do to save its prosecution; it is irreparably barred. For example, in Phillips,

the defendant was charged with twelve counts of sexual offenses committed in 1982 and 1983, but

no indictment was filed until 2007. The statute of limitations for all twelve counts had run in 1993

under the then-existing ten-year statute of limitations, and there was no other offense that had arisen



        4
          362 S.W .3d 606 (Tex. Crim. App. 2011). Serendipitously, we delivered our opinion in Phillips just nine days
before Heilman’s probation was formally discharged.

         5
             Id. at 617.
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from the same conduct with which to charge him. There was nothing the state could do to resurrect

those charges, which had been time-barred for fourteen years. The problem was incurable. Phillips

was therefore entitled to prevail on his ex post facto claim as a matter of law.

         But if the pleading is “reparable,” then the statute of limitations is a factual affirmative

defense on which the defendant bears the burden of proof.6 As we explained in Phillips,

         The pleading that gives rise to a limitations factual defense is reparable. The pleading
         that gives rise to a statute-of-limitations bar is not. The first is forfeited unless raised
         before or during the trial and cannot be raised in a pretrial writ. The second—a true
         ex post facto violation—is not forfeitable under Ieppert.7

         In this case, unlike Phillips, another offense that arose from the same conduct was not time-

barred. Had Heilman said that he did not want to waive his statute-of-limitations claim to the

misdemeanor, the prosecutor could say, “Fine. The grand jury will return a felony indictment this

afternoon.” This misdemeanor information was easily “reparable” by charging the state-jail felony

offense of tampering with a governmental record, which has a three-year statute of limitations and

was not time-barred.8 Although the face of the indictment looks as if the charge were time-barred,

a glance at the plea papers and deferred-adjudication judgment and conditions of probation shows

that, unlike Phillips, Heilman explicitly waived his right to complain about the statute of limitations

concerning the misdemeanor in return for the prosecutor’s act of not obtaining a felony indictment

for which the statute of limitations had not run. As the state has consistently argued, Heilman



         6
             Id.

         7
             Id. (citing Ieppert v. State , 908 S.W .2d 217 (Tex. Crim. App. 1995).

         8
           T EX . C O D E C RIM . P ROC . art. 12.01(6); see State v. Collier, 285 S.W .3d 133, 135 (Tex. App.–Houston [1st
Dist.] 2009, no pet.) (“The statute of limitations for the state jail felony of tampering with a governmental record is three
years.”).
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“‘benefitted handsomely from his bargain,’”9 and he cannot complain now.10 In comparison, Phillips

went to trial and benefitted not at all. And, before this Court, the state, represented by the State

Prosecuting Attorney, conceded that the state was mistaken at trial and on direct appeal and that the

statute of limitations had run in 1993, four years before the Legislature passed the extension of the

statute of limitations on which the state had relied.

         This situation is the converse of that addressed by the Supreme Court in Spaziano v.

Florida.11 In that case, the defendant was being tried on capital-murder charges, but, at the jury-

charge conference, the trial judge refused to charge the jury on the lesser-included offenses of murder

and manslaughter because the defendant refused to waive the statute of limitations, which had

already run on those offenses.12 On appeal, the defendant complained that he should not be required

to waive one substantive right–reliance on the statute of limitations–to obtain the benefit of another

substantive right–instructions on lesser-included offenses.13 The Supreme Court held that the

defendant could not have his cake and eat it, too. The defendant was entitled to make his choice:

instructions on the lesser-included offenses if he waived the statute of limitations on those lesser




         9
              State v. Heilman, 413 S.W .3d 503, 508 (Tex. App.–Beaumont 2013) (quoting prosecutor).

         10
           See Rhodes v. State, 240 S.W .3d 882, 891 (Tex. Crim. App. 2007) (“[o]ne who accepts the benefits of a
judgment, decree, or judicial order is estopped to deny the validity or propriety thereof, or any part thereof, on any
grounds; nor can he reject its burdensome consequences. The only exception to this principle is for challenges to the
subject-matter jurisdiction of the court rendering the judgment.”) (internal quotation marks and citation omitted ).

         11
              468 U.S. 447 (1984).

         12
              Id. at 450.

         13
              Id. at 455.
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offenses or no lesser-included instructions if he did not waive the limitations claim.14 We held the

same in State v. Yount; the defendant may either waive the statute of limitations and obtain

instructions on lesser-included offenses or insist upon the statute of limitations and forego lesser-

included instruction on offenses that are otherwise time-barred.15

         The bottom line in those cases is that the statute of limitations may be expressly waived in

special circumstances when the limitations statute does not protect the defendant’s or society’s

interests.16 As a public-policy matter, when the defendant may still be prosecuted for acts that are

not barred by a statute of limitations and arose from the same criminal episode, the limitations statute

does not provide full protection to the defendant, and the rationale for the rule does not apply.17


         14
            Id. at 456. The Court explained,
         If the jury is not to be tricked into thinking that there is a range of offenses for which the defendant
         may be held accountable, then the question is whether Beck requires that a lesser included offense
         instruction be given, with the defendant being forced to waive the expired statute of limitations on
         those offenses, or whether the defendant should be given a choice between having the benefit of the
         lesser included offense instruction or asserting the statute of limitations on the lesser included offenses.
         W e think the better option is that the defendant be given the choice.

Id. As the Supreme Court made clear, waiver of the statute of limitations in this context may protect the interests of the
jury and those of society, as well as the defendant.

         15
              State v. Yount, 853 S.W .2d 6, 9 (Tex. Crim. App. 1993).

         16
             See Hulsey v. State, ___ So.3d ___, CR-13-0357, 2014 W L 4957734, at *2 (Ala. Crim. App. Oct. 3, 2014)
(“Notwithstanding the fact that in certain special circumstances where the bar of the statute may be expressly waived
when it does not operate in the defendant’s favor, . . . under ordinary circumstances the bar of the statute is not waived
by a mere failure to assert it, and the statute of limitations may be properly asserted on appeal or in a petition for post-
conviction relief.”) (citing Spaziano; other internal citations omitted); Cartagena v. State, 125 So.3d 919, 921 (Fla. Dist.
Ct. App. 2013) (defendant may expressly waive statute of limitations in return for instructions on lesser-included offenses
if certain procedures are followed); People v. Brocksmith, 604 N.E.2d 1059, 1065 (Ill. Ct. App. 1992) (“If a defendant
wishes to seek a lesser offense and try for the possible compromise verdict, he must be willing to accept the consequences
of that decision, even if it means conviction of a crime for which the statute of limitations has expired.”), affirmed, 642
N.E.2d 1230 (1994). See generally, Alan L. Adelstein, Conflict of the Criminal Statute of Limitations with Lesser
Offenses at Trial, 37 W M . & M ARY L. R EV . 199 (1995); Tim A. Thomas, Annotation, Waivability of Bar of Limitations
Against Criminal Prosecution, 78 A.L.R.4th 693 (1990); Annotation, Conviction of Lesser Offense, Against Which
Statute of Limitations Has Run, Where Statute Has Not Run Against Offense With Which Defendant Is Charged, 47
A.L.R.2nd 887 (1956 ).

         17
              See Cartegena, 125 So.3d at 921.
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         There is no question that, if the special prosecutor had indicted Heilman for the state-jail

felony offense of tampering with a governmental record (an offense that was not time-barred),

Heilman could and would have waived the statute of limitations if he pled guilty to the lesser-

included misdemeanor offense even though it was technically time-barred.18 The reverse is also true:

If an indictment or information charging the misdemeanor offense of tampering with a governmental

record is time-barred, but the state-jail felony offense of tampering with a governmental record is

not,19 then a defendant may expressly waive reliance on the statute of limitations and plead to the

misdemeanor offense to avoid indictment and trial on the corresponding felony offense.

         In sum, Heilman could, and did, expressly waive his right to rely upon the statute of

limitations in pleading guilty to the misdemeanor offense of tampering with a governmental record

in exchange for the state’s agreement not to indict him on the state-jail felony tampering offense for

which the statute of limitations had not run. But because the Court goes too far and overrules the

easily distinguishable Phillips, I must dissent.



Filed: March 18, 2015
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         18
            “By statute, a district court is permitted to try a misdemeanor that is included within a felony offense, even
though the misdemeanor would not otherwise be subject to that court’s jurisdiction.” McKinney v. State, 207 S.W .3d
366, 376 (Tex. Crim. App. 2006). See T EX . C O D E C RIM . P RO C ., arts. 4.05 (jurisdiction of district courts), 4.06 (when
felony includes misdemeanor).

         19
           The pertinent distinction between the misdemeanor and state-jail felony offenses of tampering with a
governmental record is that, to establish the felony, the state must prove that the defendant intended to “harm or defraud
another” when he made a false entry in a governmental record. T EX . P ENAL C ODE § 37.10(c)(1).
