Three of Us Dissent, But We Generally All Agree about What to Do with the Appellee

In today's case, judges on Texas's Court of Criminal Appeals divide on the result in a case and also the reasons the lower court should be reversed or affirmed. This case arises out of a scandal in the Beaumont Police Department. Eric Heilman and Brad Beaulieu were accused of altering facts and leaving out details from statements and subsequent testimony related to a 2008 drug bust, such that the case against the defendant was dismissed. Following Heilman's guilty-plea placement on deferred adjudication for misdemeanor tampering with a governmental record, completion of deferred adjudication probation, and dismissal of the charge, he sought writ of habeas corpus, got relief, and the State appealed. Beaumont's Court of Appeals affirmed, and the State petitioned for discretionary review.

See, the deal that he made was that he agreed to waive the statute of limitations so he could take a misdemeanor instead of a felony.

But is that legal? Can a defendant waive the protection of limitations? Doesn't a court attempting an out-of-limitations plea deal lack jurisdiction to act?

This question sent the CCA judges shooting off in four different directions.

A lesson I draw from this case is that an advocate should not follow precedent, particularly in the CCA as if one were a blindered mule. Heilman-- a confessed crooked cop-- gets a sweet plea deal (I try to remember a sweeter one than this that I was in any way involved in. In my 24 years of experience, only one comes to mind.), but then-- Backsies!-- he gets to undo even that so he can hang on to his peace-officer license. The foul stench of this outcome got some CCA judges and their staff attorneys to hit the legal databases and see how this deal could be undone.

Judge Michael Keasler wrote for the majority including Presiding Judge Keller, Judges Hervey, Richardson, Yeary and Newell. Heilman's argument had been that a limitations bar could not be waived by a defendant. The majority disagreed, though admitting that Heilman's argument was supported by Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App.-- 2011). Nobody would want the legislative process to make actions done before a law was made criminal offenses, and those are the kinds of laws that there should not be a need to complain about before they are enforced. Does that mean, though, that where the statute is not of that type, a defendant shouldn't be able, knowingly and voluntarily to waive the benefit of limitations in exchange for some other benefit so the majority said that Phillips did not apply in this case.

Judge David Newell concurred, joined by the Presiding Judge and Judge Hervey, that Phillips conflicted with the instant case, and that the Court should frankly overrule Phillips instead of pussy-footing around.

Judge Lawrence E. Meyers dissented. The problem, he said, is not Phillips, but Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App.-- 1998) which made limitations a defensive issue (putting the burden of proof on the defendant) and not an element of any offense. 

Judge Cheryl Johnson dissented. She said that Heilman had the power to waive limitations under present law-- there was a quid pro quo: defendant's waiver of limitations as to misdemeanors was traded for the State's not charging him with a non-limitations barred felony. She also got in the best sentence of this whole festshrift: "Heilman might have chutzpah, but he does not have a valid limitations claim."
Judge Elsa Alcala dissented, also, arguing that the only law that needed to be overruled for this case to get a proper result would be Phillips's holding that limitations deprive a trial court of jurisdiction.
For all these opinions, there are really very few differences in the outcome of the case suggested. The CCA has overruled the jurisdiction ruling in favor of Heilman and sent his other issues back to Beaumont. Though Judge Meyers calls his opinion a dissent, it appears to me that the actual disposition of Heilman's case he advocates for is hard to distinguish from the majority's. Same for Judge Johnson's and Judge Alcala's. I thought that an opinion that had the same result in one case as another, even though the reasons conflicted, were concurrences.
Ex parte Eric Michael Heilman, (No. PD-1591-13, Tex. Crim. App.-- March 18, 2015) (orig. proceeding)

Practical Advice for Keeping Records of Your Records of Your Past Trials and Appeals

When I first started keeping records of my trials and appeals, I used Bluebook and Greenbook citation rules to format my records, but looking for work, prospective employers often wanted to know things I didn't have recorded- the given names of my clients and adversary parties, the exact dates cases were decided. Keep your records in a master list that includes those pieces of information and the results of the matters, so you don't have to remake the list a couple of times, as I have had to.