State v. Eric Michael Heilman ( 2013 )

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.
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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.
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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.
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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
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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).
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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,
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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
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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.
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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.
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Ohio 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
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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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