                                    In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                         ____________________
                            NO. 09-12-00505-CR
                         ____________________

                     THE STATE OF TEXAS, Appellant

                                      V.

                   ERIC MICHAEL HEILMAN, Appellee
_______________________________________________________        ______________

               On Appeal from the County Court at Law No. 2
                          Jefferson County, Texas
                          Trial Cause No. 285580
________________________________________________________        _____________

                                  OPINION

      The State appeals an order granting habeas corpus relief to Eric Michael

Heilman. He successfully completed community supervision in a misdemeanor

case. But the charging instrument on its face established that the statute of

limitations prohibited the State from prosecuting the defendant. Given the

circumstances presented, the habeas court reasonably concluded relief should be

granted.



                                      1
                                     THE FACTS

      Heilman was a police officer with the Beaumont Police Department. He and

another officer were assisting in an undercover narcotics transaction involving a

confidential informant. The narcotics transaction did not occur, and the target of

the investigation left the scene. Heilman and his partner chased the suspect and

ultimately arrested him. The officers seized cash and a large amount of cocaine

from the suspect. In the probable cause affidavit Heilman drafted, he did not

mention the undercover narcotics operation or the confidential informant. The

suspect later disclosed facts that had been omitted from the probable cause

affidavit. An investigation began, and the officers testified before a grand jury, but

no formal charges resulted.

      The State proposed to Heilman that, in exchange for his plea of guilty to a

misdemeanor charge of tampering with a governmental record, he would receive

deferred adjudication. According to Heilman, he 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.” Heilman notes grand jury

proceedings are confidential by statute. He contends that he and his attorney were

placed under a deadline by the prosecutor that prohibited them from investigating

defenses.

                                          2
      Heilman pleaded guilty to the misdemeanor charge and was placed on

deferred adjudication for one year. The information for the misdemeanor charge

stated that Heilman

      did then and there intentionally and knowingly make, present, and use
      a governmental record, to wit: a probable cause statement dated
      October 13, 2008 regarding the arrest of Bryan Sostand and [Heilman]
      made, presented or used said governmental record with knowledge of
      it falsity[.]

After Heilman’s successful completion of community supervision, the trial court

discharged him and dismissed the case.

      Heilman filed an application for writ of habeas corpus. He asserted that his

plea was involuntary and that he had received ineffective assistance of counsel. He

attached several affidavits from law enforcement personnel, including one from the

police chief. The affiants explained that it was the policy of the Beaumont Police

Department to not disclose the involvement of a confidential informant or the

existence of an undercover drug operation in connection with preparing arrest

reports, unless the actual transfer of narcotics occurred. In his affidavit, the police

chief stated:

      If a suspect is arrested during the course of a failed undercover
      operation, Officers are expected to develop probable cause for any
      arrest separate from the involvement of the undercover operation or
      information from the confidential informant.


                                          3
The police chief further explained that the “policy is designed to protect the

informant as well as the integrity of undercover operations by the Beaumont Police

Department.”

      Before the hearing on Heilman’s application, the habeas court requested

briefs on the issue of the original jurisdiction of the trial court to rule on the

misdemeanor charge. After considering the parties’ submissions, the court

determined that the prosecution for the misdemeanor offense was, in the words and

plain sense of the charging document “on its face[,]” barred by the applicable

statute of limitations. The trial court dismissed the information and vacated the

deferred adjudication order.

                                 HABEAS CORPUS

      A writ of habeas corpus is available relief for jurisdictional defects and for

violations of constitutional or fundamental rights. Ex parte Douthit, 232 S.W.3d

69, 71 (Tex. Crim. App. 2007). If a misdemeanor judgment is void, yet its

existence may have detrimental collateral consequences, the judgment may be

collaterally attacked. See Tatum v. State, 846 S.W.2d 324, 327 (Tex. Crim. App.

1993). Heilman’s inability to acquire a Texas peace officer’s license because of his

guilty plea, and the resulting deferred adjudication and community supervision

order, is a collateral legal consequence sufficient to support the habeas corpus

                                         4
application. See State v. Collazo, 264 S.W.3d 121, 126-27 (Tex. App.—Houston

[1st Dist.] 2007, pet ref’d).

                                STANDARD OF REVIEW

      An appellate court reviews a trial court’s decision to grant habeas corpus

relief under an abuse of discretion standard. See Ex parte Ayers, 921 S.W.2d 438,

440-41 (Tex. App.—Houston [1st Dist.] 1996, no pet.). We review de novo a trial

court’s rulings on questions of law. Sandifer v. State, 233 S.W.3d 1, 2 (Tex.

App.—Houston [1st Dist.] 2007, no pet.) (citing Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997)).

                                  RELIEF SOUGHT

      The State argues that Heilman’s amended application for writ of habeas

corpus did not include a limitations argument. But the habeas court raised the issue

before granting the relief, and requested briefing. Heilman filed a motion to enter

findings of fact and conclusions of law before the court granted relief. The motion

requested that the trial court find that the statute of limitations had expired before

December 22, 2010, and that the trial court lacked jurisdiction to accept the plea or

place Heilman on community supervision. Heilman cited the Court of Criminal

Appeals decisions in Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App. 2011) and

Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004).

                                          5
      In granting habeas relief, the court explained that the amended application

for writ of habeas corpus challenged the legality of the deferred probation order,

and that the court considered the amended writ application, along with all the

parties’ replies and responses, whether submitted by letter-brief or by motions or

objections. The court included in its findings the following:

             [T]he Court concludes that by invoking this Court’s subject-
      matter jurisdiction upon the filing of the instant Article 11.072 writ-
      application in this Court, the jurisdiction/authority issue was squarely
      presented as a matter for “threshold determination” due to the
      appearance on the face of the underlying criminal Information of an
      alleged offense-date of “October 13, 2008,” and the adjacent file-
      stamp of the Jefferson County Clerk designating the cause’s filing-
      date as December 22, 2010.

The limitations issue on which relief was granted was before the habeas court. The

relief granted was sought by Heilman. Issue one is overruled.

                       STATUTE OF LIMITATIONS AND WAIVER

      The State argues the habeas court erred in holding that the misdemeanor

information demonstrated “on its face” that the offense was barred by the statute of

limitations. The State also contends that Heilman expressly waived the statute of

limitations, that he agreed, in effect, to be prosecuted, and that the trial court had

the authority to accept the plea.

      A charging instrument must charge a person with the commission of an

offense over which the trial court has jurisdiction. Teal v. State, 230 S.W.3d 172,
                                          6
181 (Tex. Crim. App. 2007). The charging instrument must indicate that a

prosecution is not barred by the applicable statute of limitations. See Tex. Code

Crim. Proc. Ann. art. 21.02(6) (West 2009); see also Tex. Code Crim. Proc. Ann.

art. 21.21(6) (West 2009) (An information is sufficient if, among other things, the

time mentioned therein is a date anterior to the filing of the information, and that

the offense does not appear to be barred by limitation.). The primary purpose for

specifying a date in a charging instrument is to show that prosecution is not barred.

Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998).

      Before the filing of the information on December 22, 2010, Heilman had not

been charged with a crime. The only date in the information is October 13, 2008,

the date of the probable cause affidavit.

      “An indictment or information for any Class A or Class B misdemeanor may

be presented within two years from the date of the commission of the offense, and

not afterward.” Tex. Code Crim. Proc. Ann. art. 12.02(a) (West Supp. 2012). In a

post-conviction habeas proceeding, the Court of Criminal Appeals stated:

      [T]he Code of Criminal Procedure provides, “For all misdemeanors,
      an indictment or information may be presented within two years from
      the commission of the offense, and not afterwards.” It is plain, then,
      from the reading of this statute that, if a prosecution does not occur
      within two years from the time of its commission, there can be no
      prosecution. This is the period of limitation fixed by the Legislature.
      They had authority to fix the period of limitation. This court has no
      authority to change it. And there is no authority in law to prosecute
                                            7
      any citizen of Texas for the violation of the law after the period of
      limitation has intervened. (citations omitted).

Ex parte Hoard, 140 S.W. 449, 450-51 (1911).

      Until the amendments to Article V, Section 12 of the Texas Constitution and

Article 1.14(b) of the Code of Criminal Procedure, “limitations was considered a

jurisdictional issue.” State v. Turner, 898 S.W.2d 303, 307 (Tex. Crim. App.

1995). Following the amendments, the Court of Criminal Appeals held that

generally a statute of limitations bar is not jurisdictional. See Proctor v. State, 967

S.W.2d 840, 843-44 (Tex. Crim. App. 1998).

      In Phillips, 362 S.W.3d at 617-18, however, the Court of Criminal Appeals

explained that the holding in Proctor applies to statute-of-limitations defenses that

are based on facts and not to “pure law” challenges, where the charging instrument

shows on its face that the prosecution is absolutely barred by the statute of

limitations. 1 “[T]o resurrect a prosecution after the relevant statute of limitations

has expired is to eliminate a currently existing conclusive presumption forbidding

prosecution[.]” Stogner v. California, 539 U.S. 607, 616, 123 S.Ct. 2446, 156

L.Ed.2d 544 (2003); compare Falter v. United States, 23 F.2d 420, 425-26 (2d Cir.



      1
       Phillips dealt with an ex post facto claim. See Phillips v. State, 362 S.W.3d
606, 607-08, 616-18 (Tex. Crim. App. 2011). Court action, not an ex post facto
law, was under consideration in the habeas proceeding in this case.
                                          8
1928) (“For the state to assure a man that he has become safe from its pursuit, and

thereafter to withdraw its assurance, seems to most of us unfair and dishonest.”).

      In Ex parte Smith, the Court of Criminal Appeals stated, “[W]hen the face of

the pleading shows that the offense charged is barred by limitations, that pleading

‘is so fundamentally defective that the trial court does not have jurisdiction and

habeas relief should be granted.’” Ex parte Smith, 797, 802 (Tex. Crim. App. 2005)

(quoting Ex parte Dickerson, 549 S.W.2d 202 (Tex. Crim. App. 1977)); see also

Ex parte Weise, 55 S.W.3d 617 620 (Tex. Crim. App. 2001) (“[W]hen the

pleading, on its face, shows that the offense charged is barred by limitations . . . the

applicant is challenging the trial court’s power to proceed.”). The habeas court

reasonably concluded that the information, on its face, charged an offense the State

could no longer prosecute, and one over which the trial court did not have

jurisdiction.

      The court also reasonably concluded that the parties could not by agreement

confer jurisdiction on the trial court. See Tex. Code Crim. Proc. Ann. art. 12.02

(West Supp. 2012) (“and not afterward”); compare Garcia v. Dial, 596 S.W.2d

524, 527 (Tex. Crim. App. 1980) (Subject matter jurisdiction cannot be conferred

by agreement and it exists by reason of the authority vested in the court by the

Constitution and statutes.), and Ieppert v. State, 908 S.W.2d 217, 220 (Tex. Crim.

                                           9
App. 1995) (People may not “consent to be imprisoned for conduct which does not

constitute a crime.”); see also State v. Sneed, 25 Tex. 66, 25 Tex. Supp. 66, 67

(1860) (“The state having neglected to prosecute within the time prescribed for its

own action, lost the right to prosecute the suit.”). Although the habeas court did not

address the merits of the ineffective assistance of counsel claim, the record and the

findings of fact also indicate an involuntary waiver based on inadequate knowledge

that need not be given effect under these circumstances.

       On this habeas record, we see no abuse of discretion by the court. See

generally Ex parte Ayers, 921 S.W.2d at 440 (standard of review); Tex. R. App. P.

31.2 (“The sole purpose of the appeal is to do substantial justice to the parties.”).

Issues two and three are overruled.

                                      ESTOPPEL

      The State contends that Heilman is estopped from attacking the underlying

judgment because “he bargained for the plea agreement and benefitted from it.”

The doctrine of estoppel does not apply if the trial court had no jurisdiction over

the case. See Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007). And

the doctrine of estoppel need not be applied when the acceptance of benefits is “not

wholly voluntary.” See Gutierrez v. State, 380 S.W.3d 167, 178-79 (Tex. Crim.

App. 2012). Finally, the State has not cited this Court to any assertion of the

                                         10
doctrine of estoppel in the court below. See Tex. R. App. P. 33.1; 38.1(d),(i). The

prosecutor argued that Heilman “took advantage of an offer made to him to avoid a

felony indictment,” and “benefited handsomely from his bargain[.]” But the

argument appears in support of the express waiver assertion, and was not referred

to in the habeas court as estoppel. Issue four is overruled. The trial court’s order is

affirmed.

      AFFIRMED.


                                               ________________________________
                                                       DAVID GAULTNEY
                                                             Justice

Submitted on June 20, 2013
Opinion Delivered October 16, 2013
Publish

Before Gaultney, Kreger, and Horton, JJ.




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