State of Texas v. Heilman, Ex Parte Eric Michael , 456 S.W.3d 159 ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1591-13
EX PARTE ERIC MICHAEL HEILMAN, Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
JEFFERSON COUNTY
K EASLER, J., delivered the opinion of the Court, in which K ELLER, P.J., and
H ERVEY, R ICHARDSON, Y EARY, and N EWELL, JJ., joined. N EWELL, J., filed a
concurring opinion, in which K ELLER, P.J., and H ERVEY, J., joined. M EYERS, J.,
filed a dissenting opinion. J OHNSON, J., filed a dissenting opinion. A LCALA, J., filed a
dissenting opinion.
OPINION
Eric Heilman pleaded guilty to misdemeanor tampering with a governmental record
after the relevant two-year statute of limitations had expired. In return for Heilman’s plea,
the State agreed not to pursue indictment for state-jail felony tampering with a governmental
record. In an application for a writ of habeas corpus, Heilman challenged the trial court’s
jurisdiction to accept his plea to the time-barred offense, arguing that his “pure law”
HEILMAN—2
limitations defense is a category-one absolute right under Marin v. State.1 The habeas court
granted relief, and the court of appeals affirmed. We hold that the right at issue is a category-
three forfeitable right and reverse the judgment of the court of appeals.
I. Facts and Procedural History
In October 2008, Heilman was serving as an officer with the Beaumont Police
Department. Along with another officer and a confidential informant, Heilman took part in
a failed undercover narcotics sting targeting a suspected drug dealer. Although no
transaction occurred, when the suspect began to leave, Heilman pursued and arrested him,
seizing cash and a large amount of cocaine. But when Heilman drafted his probable-cause
affidavit on October 13, 2008, he failed to mention either the undercover operation or his
confidential informant.
When that affidavit’s veracity was later challenged, a district attorney pro tem began
a grand-jury investigation of Heilman. During the entire investigation, no indictment,
information, or criminal complaint was ever filed against Heilman. Nevertheless, on
December 22, 2010, Heilman pleaded guilty on a misdemeanor information of tampering
with a governmental record in return for the State agreeing to (1) forgo indictment on the
state-jail felony offense and (2) not oppose early termination of his one-year deferred-
adjudication sentence after six months. Because Heilman’s offense of tampering with a
1
851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by
Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).
HEILMAN—3
governmental record—a Class A misdemeanor—carried only a two-year statute of
limitations,2 Heilman also signed a written waiver stating: “I hereby waive all statute of
limitations.” Heilman also signed a Deferred Adjudication Order stating: “DEFENSE
WAIVES STATUTE LIMITATIONS PER JUDGE FLORES.” On June 24, 2011, after the
agreed-upon six months, the trial court terminated Heilman’s deferred adjudication and
dismissed the information.
Heilman subsequently filed an application for a writ of habeas corpus, citing as a
collateral consequence his inability to obtain a peace officer’s license and alleging an
involuntary plea and ineffective assistance of counsel. He also sought findings of fact and
conclusions of law that the original trial court lacked jurisdiction under Phillips v. State 3 both
to accept his December 2010 plea and to sentence him to deferred adjudication after the two-
year statute of limitations’ expiration in October 2010. The habeas judge vacated the trial
court’s proceedings against Heilman, concluding it lacked jurisdiction. The court of appeals
affirmed, holding that the “charging instrument on its face established that the statute of
limitations prohibited the State from prosecuting the defendant.” 4
II. Analysis
The circumstances of this case force us to reconsider the nature of a statute-of-
2
See T EX. C ODE C RIM. P ROC. A NN. art. 12.02(a) (West 2012).
3
362 S.W.3d 606 (Tex. Crim. App. 2011).
4
State v. Heilman, 413 S.W.3d 503, 505–508 (Tex. App.—Beaumont 2013)
(citing Phillips, 362 S.W.3d at 617–18).
HEILMAN—4
limitations defense and exactly what right it protects. And although “[o]ften it is better to
be consistent than right,” we overrule precedent when the reasons for doing so are “weighty
enough,” including when the precedent was “flawed from the outset” and produces “unjust”
results “that place unnecessary burdens on the system.”5 Heilman’s reliance on Phillips v.
State presents us with such a situation.
A. Marin’s Three Categories
In Marin v. State, we constructed a three-part framework to categorize the rights of
our criminal-justice system:
1. “absolute requirements and prohibitions”;
2. “rights of litigants which must be implemented by the system unless expressly
waived”; and
3. “rights of litigants which are to be implemented upon request.” 6
We explained that category-one rights “are to be observed even without partisan request” and
cannot “lawfully be avoided even with partisan consent.”7 Category-two rights, however,
can be waived by right, but a litigant “is never deemed to have done so in fact unless he says
so plainly, freely, and intelligently, sometimes in writing and always on the record.” 8 Finally,
5
See Ex parte Lewis, 219 S.W.3d 335, 338 (Tex. Crim. App. 2007).
6
Marin, 851 S.W.2d at 279.
7
Id. at 280.
8
Id.
HEILMAN—5
a category-three right can be forfeited by a litigant “for failure to insist upon it by objection,
request, motion, or some other behavior calculated to exercise the right in a manner
comprehensible to the system’s impartial representative, usually the trial judge.” 9
B. Phillips v. State’s distinction between factual and pure-law limitations defenses
Under Proctor v. State, we originally held that a statute-of-limitations defense “is
forfeited if not asserted at or before the guilt/innocence stage of trial,” thereby placing it in
Marin’s third category.10 Yet more recently in Phillips v. State, we distinguished between
two types of limitations defenses: (1) those that are “based on facts” and (2) those that are
“pure law.”11 Whereas the first type merely “gives rise to a limitations factual defense”
because it requires factual development beyond the charging instrument, the second appears
on the face of the instrument and therefore “gives rise to a statute-of-limitations bar” that
constitutes a jurisdictional defect.12 We held that, while Proctor—and therefore Marin’s
third category—continued to apply to factual limitations defenses, it did not apply to those
that are pure law.13 Therefore, a defendant could forfeit only a factual limitations defense
by failing to assert it at trial.14 But a pure-law limitations defense, as a jurisdictional defect,
9
Id. at 279.
10
See Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998).
11
Phillips, 362 S.W.3d at 617.
12
Id.
13
Id.
14
Id.
HEILMAN—6
could not be forfeited and could be raised for the first time on appeal or in a collateral
proceeding.15
C. Bases of Phillips’s distinction
In making that distinction, we relied primarily on the constitutional prohibitions
against ex post facto laws—found in both the federal and Texas constitutions 16 —and our
reasoning in Ieppert v. State.17 In that case, we clarified that the prohibition against ex post
facto laws is not actually an individual right, but instead “a categorical prohibition directed
by the people to their government” that cannot be waived “either individually or
collectively.”18 Citing that language, we held in Phillips that the “right to be free from ex
post facto laws or the ex post facto application of a law” is a Marin category-one absolute
right.19
Our analysis in Phillips then cited the Supreme Court’s Stogner v. California 20
decision to resolve the collision between the constitutional ex post facto prohibition (a
category-one absolute right under Ieppert) and a statute-of-limitations defense (originally a
15
Id.
16
U.S. C ONST. art. I, § 10 cl. 1 (“No state shall . . . pass any . . . ex post facto
Law.”); T EX. C ONST. art. I, § 16 (“No . . . ex post facto law . . . shall be made.”).
17
908 S.W.2d 217 (Tex. Crim. App. 1995).
18
Id. at 220.
19
Phillips, 362 S.W.3d at 611–12.
20
539 U.S. 607 (2003).
HEILMAN—7
category-three forfeitable right under Proctor).21 In Stogner, the Supreme Court held that
a state statute allowing time-barred prosecutions for sex-related child abuse if “begun within
one year of the victim’s report” violated the Ex Post Facto Clause.22 We noted the Supreme
Court’s invocation of the assurances the State provides through a statute of limitations;
namely that one “has become safe from its pursuit,” and that the State will “play by its own
rules” and give “fair warning” to preserve exculpatory evidence.23 Citing those assurances,
we held in Phillips that a “facially retroactive law that revived a previously time-barred
offense violated the Ex Post Facto Clause,” thus making a pure-law limitations defense a
category-one right through application of the Ex Post Facto Clause.24 Therefore, once the
statute of limitations on Phillips’s offenses expired, “from that day forward, prosecution of
all twelve counts was forever and absolutely barred.” 25
D. Our decision to overrule Phillips v. State
We now conclude that Phillips’s distinction between factual and pure-law limitations
defenses was in error, at least in circumstances lacking any legislative ex post facto violation.
Only the legislature can violate either the federal or state Ex Post Facto Clause because—as
21
Phillips, 362 S.W.3d at 614.
22
Stogner, 539 U.S. at 609 (citing C AL. P ENAL C ODE A NN. § 803(g) (West Supp.
2003)).
23
Phillips, 362 S.W.3d at 614 (citing Stogner, 539 U.S. at 611).
24
See id.
25
Id. at 616.
HEILMAN—8
we held in Ortiz v. State and now reaffirm—both are “directed at the Legislature, not the
courts.” 26 Indeed, as the seminal case on the Ex Post Facto Clause—Calder v.
Bull—declared, the “plain and obvious meaning and intention of the prohibition” is that “the
Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen,
which shall have relation to such fact, and shall punish him for having done it.” 27
Our Ortiz holding also sought to limit the effect of Ieppert, the case on which so much
of Phillips’s reasoning relied. We explained that in Ieppert “we did not appear to appreciate
the distinction” between the legislature and the courts due to Bouie v. City of Columbia’s due
process prohibition against the judiciary “achieving, through construction of a statute, the
exact same consequence that would be prohibited by the ex post facto clause if the
Legislature had so acted.”28 We noted that the Supreme Court in Rogers v. Tennessee had
since declared that reasoning dicta—clarifying that Bouie turned only on a due process
violation—and held the federal Ex Post Facto Clause inapplicable to the courts, citing the
“important institutional and contextual differences between legislating, on the one hand, and
26
Ortiz v. State, 93 S.W.3d 79, 91 (Tex. Crim. App. 2002). See also Phillips, 362
S.W.3d at 619 (Keller, P.J., dissenting).
27
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). See also Marks v. United States,
430 U.S. 188, 191 (1977) (“The Ex Post Facto Clause is a limitation upon the powers of
the Legislature, and does not of its own force apply to the Judicial Branch of
government.”) (citations omitted).
28
Ortiz, 93 S.W.3d at 91 (citing Bouie v. City of Columbia, 378 U.S. 347, 353
(1964)).
HEILMAN—9
common law decisionmaking, on the other.” 29
In concluding its analysis in Stogner, the Supreme Court struck down California’s
statute because it “retroactively withdraws a complete defense to prosecution after it has
already attached, and it does so in a manner that allows the State to withdraw this defense at
will and with respect to individuals already identified.”30 But here, the State could not pursue
the time-barred offense “at will.” There was no statute like California’s enabling it to do so.
Because there was no legislative act, there was no ex post facto violation.31 And although
Stogner clarified the nature of a statute-of-limitations defense operating in conjunction with
a violation of the Ex Post Facto Clause, it provided no guidance as to whether a statute-of-
limitations defense standing alone must be forfeitable, waivable, or absolute that would direct
our Marin analysis and require us to stray from Proctor.
But we need not hold that the legislature acting only by and through itself can violate
the Ex Post Facto Clause.32 In Peugh v. United States, a recent Supreme Court decision that
we did not have the benefit of reviewing when we decided Phillips, the Court held that a trial
29
Id. (citing Rogers v. Tennessee, 532 U.S. 451, 460 (2001)).
30
Stogner, 539 U.S. at 632.
31
Ortiz, 93 S.W.3d at 91. See also Phillips, 362 S.W.3d at 624 (Keller, P.J., dissenting)
(“[T]he savings provision prevented the 1997 amendments from applying to appellant’s sex
offenses that became barred in 1993. The parties and the trial court were simply mistaken in
believing that the 1997 statute applied. The legislature did not pass an ex post facto law.”).
32
See, e.g., Peugh v. United States, 133 S. Ct. 2072, 2085 (2013) (plurality stating
that “the coverage of the Ex Post Facto Clause is not limited to legislative acts”).
HEILMAN—10
judge’s application of the Federal Sentencing Guidelines in effect at the time of a defendant’s
trial instead of those in effect at the time of the defendant’s offenses violated the Ex Post
Facto Clause.33 In rejecting the government’s argument that the guidelines were just one
among a number of sources that a district court could use during sentencing, no different than
a “policy paper,” the Supreme Court noted the statutory consequences from either following
or deviating from the guidelines.34 A district court had to consult the guidelines to avoid
“reversible procedural error” and risked an abuse-of-discretion finding on appeal if it
deviated too far.35 But if a district court followed the guidelines, a court of appeals could
presume the sentence reasonable.36 The Court also cited Garner v. Jones, which recognized
that a state parole board could—but refused to find that it did—violate the Ex Post Facto
Clause by changing its rules.37
But at no point in Peugh did the Supreme Court overturn—or even reference—its
earlier refusal to extend the scope of the Ex Post Facto Clause to the courts in Rogers v.
Tennessee, which solidifies our holding that, while the clause’s scope can extend to executive
agencies exercising delegated legislative power, it still does not extend to courts exercising
33
Id. at 2088.
34
Id. at 2087 (referencing various provisions of 18 U.S.C. § 3553).
35
Id.
36
Id.
37
Id. at 2085 (citing Garner v. Jones 529 U.S. 244, 247, 257 (2000)).
HEILMAN—11
their inherent power to accept a plea bargain.38 Thus the Supreme Court’s reasoning in
Peugh reaffirms our holding in Ortiz that the Ex Post Facto Clause is “directed at the
Legislature, not the courts.” 39
Therefore, in assessing a claim based on the Ex Post Facto Clause, we look beyond
the actor that is directly committing the alleged violation for some legislative origin of the
alleged violation—such as the enabling statutes of either the United States Sentencing
Commission in Peugh40 or the state parole board in Garner.41 A legislature cannot escape
the strictures of either the Texas or federal Ex Post Facto Clause by mere delegation. But
a defendant must be able to point to a legislative origin of the alleged violation, and here
there was none. Instead, the trial judge’s acceptance of Heilman’s time-barred plea
originated from Heilman’s plea negotiations with the State, along with his multiple waivers
of any limitations defense.
And for Heilman’s plea agreement to stand, we must first overturn Phillips v. State.
In Phillips, we reasoned that once the charging instrument showed that the statute of
38
See Rogers, 532 U.S. at 460 (“The Ex Post Facto Clause, by its own terms, does
not apply to courts. Extending the Clause to courts through the rubric of due process thus
would circumvent the clear constitutional text. It would also evince too little regard for
the important institutional and contextual differences between legislating, on the one
hand, and common law decisionmaking, on the other.”).
39
See Ortiz, 93 S.W.3d at 91.
40
See Peugh, 133 S. Ct. at 2079.
41
See Garner, 529 U.S. at 247.
HEILMAN—12
limitations on the twelve counts of sexual offenses leveled against Phillips had expired,
“from that day forward, prosecution of all twelve counts was forever and absolutely
barred.”42 Phillips’s reliance on a legally significant distinction between pure-law and factual
limitations defenses determined that result and caused us to stray from Proctor.43 It was not
dicta.44 It was an analytical step to reach the result. Therefore, because the information
against Heilman showed that the statute of limitations on the misdemeanor offense to which
he pleaded had run two months before his plea, prosecution on that offense was already
“forever and absolutely barred” under Phillips.45
Although prosecution of the state-jail felony offense would still have been possible
at that point, under Phillips that would not have revived prosecution of the misdemeanor
offense. When we analyze rights under our Marin framework, we focus on the nature of the
right at issue—not the circumstances under which it was raised.46 Therefore, our analysis
here must turn on the nature of the statute-of-limitations defense itself, not on the claim that
in hindsight the record just happens to show that a hypothetical prosecutor in these particular
42
Phillips, 362 S.W.3d at 616.
43
Id. at 617–18.
44
Cf. post, op. at 8–10 (Alcala, J., dissenting).
45
See Phillips, 362 S.W.3d at 616–17.
46
Marin, 851 S.W.2d at 279. See also Grado v. State, 445 S.W.3d 736, 739 (Tex.
Crim. App. 2014) (“In Marin, we held that the general preservation requirement’s
application turns on the nature of the right allegedly infringed.”).
HEILMAN—13
circumstances could have charged Heilman with the non-barred state-jail felony offense at
the time of his plea. It would be easy to misinterpret a statute-of-limitations defense as a
uniquely fundamental right, given that when it is properly raised, it leads to only one result:
dismissal. But its true nature—a mere legislative “act of grace”47 —is modest, especially
when compared to weightier, constitutionally based rights that we have nonetheless deemed
forfeitable.48
This opinion, however, should not be read to grant unfettered powers to the judicial
branch. Courts can still violate the Due Process Clause of the Fifth Amendment through an
“unforeseeable judicial enlargement of a criminal statute, applied retroactively.” 49 Although
this limitation is often regarded as the judicial cognate of the ex post facto prohibition,50 the
Supreme Court has made clear that the two are not co-extensive.51 Instead, the due process
47
Proctor, 967 S.W.2d at 843. See also Phillips, 362 S.W.3d at 626 (Keller, P.J.,
dissenting).
48
See, e.g., Reyna v. State, 168 S.W.3d 173, 179–80 (Tex. Crim. App. 2005)
(holding that a defendant forfeited his Confrontation Clause claim by failing to properly
preserve it at trial). See also Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App.
2009) (“[O]ur prior decisions make clear that numerous constitutional rights, including
those that implicate a defendant’s due process rights, may be forfeited for purposes of
appellate review unless properly preserved.”).
49
See Marks, 430 U.S. at 192 (citing Bouie, 378 U.S. at 353–54).
50
See id. at 191–92.
51
Rogers, 532 U.S. at 459 (“Contrary to petitioner’s suggestion, nowhere in
[Bouie] did we go so far as to incorporate jot-for-jot the specific categories of Calder into
due process limitations on the retroactive application of judicial decisions.”).
HEILMAN—14
limitation—rooted in the “basic principle that a criminal statute must give fair warning of the
conduct that it makes a crime”52 —protects against a “judicial enlargement” of a statute,
which is not alleged here.53
E. The importance of protecting good-faith, arm’s length plea agreements
Our decision today is further bolstered by the unintended effect that the distinction
between factual and pure-law limitations defenses has had on the sanctity and finality of plea
agreements. In Proctor, we advanced several practical reasons for treating a limitations
defense as forfeitable, arguing that the defense has “little to do with the truth-finding
function” of our criminal-justice system and that a defendant might waive the defense “to
gain time for plea bargaining” or “to vindicate his good name.” 54 But most significantly, the
Phillips dissent warned of the exact circumstance we now address, adding to Proctor’s list
“the possibility that foregoing a limitations defense could be part of a plea agreement
involving multiple charges.” 55
It is this unintended consequence of our Phillips holding that so concerns us and spurs
our decision to overrule it. Courts have long recognized the important role plea agreements
52
See id. at 457 (citing Bouie, 378 U.S. at 350).
53
See Marks, 430 U.S. at 192.
54
Proctor, 967 S.W.2d at 844. See also Phillips, 362 S.W.3d at 624–25 (Keller,
P.J., dissenting).
55
Phillips, 362 S.W.3d at 625 n.58 (Keller, P.J., dissenting).
HEILMAN—15
play in our criminal-justice system.56 The agreement itself “may contain a wide variety of
stipulations and conditions that allow the state to tailor conditions in order to reach
agreement with the defendant.”57 Allowing for such wide-ranging plea agreements benefits
not only the defendant and the State, who are free to explore a full array of stipulations and
conditions in plea negotiations, but also the courts, whose dockets are thinned by parties
ready and willing to settle.
But if we adhere to Phillips, we invite the very set of circumstances that we now
address. Generally, a defendant who accepts the benefits of a plea agreement is estopped
from challenging its validity.58 Yet estoppel does not apply when the trial court lacked
jurisdiction.59 Therefore, because Phillips held that a pure-law limitations defense is an
attack on a court’s jurisdiction,60 a defendant could “reap the benefits of an illegal sentence,
which is lighter than what the legal sentence would have been, and then turn around and
attack the legality of the illegal, lighter sentence when it serves his interest to do so,” as
Heilman now tries to do.61 As part of an arm’s length plea agreement made in good faith,
56
See, e.g., Brady v. United States, 397 U.S. 742, 752 (1970) (cataloguing the
advantages of a plea agreement to both a defendant and the prosecution).
57
Moore v. State, 295 S.W.3d 329, 331–32 (Tex. Crim. App. 2009).
58
Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007).
59
Id.
60
Phillips, 362 S.W.3d at 617.
61
See Rhodes, 240 S.W.3d at 891–92 (citations omitted) (seeking to avoid exactly
such a result).
HEILMAN—16
Heilman expressly waived his limitations defense to a time-barred misdemeanor offense in
two written and signed documents so as to plead guilty and avoid facing a state-jail felony
indictment. But now, after serving the six months of his deferred-adjudication sentence, he
seeks the judiciary’s assistance in reneging. Our decision today addresses this inequity.
And if we addressed this inequity by merely focusing on Heilman’s multiple waivers
without first overturning Phillips, we would unnecessarily complicate how we analyze the
statute-of-limitations defense under Marin.62 Indeed, doing so would again allow for the
categorization of the defense to depend not on its nature, as Marin requires, but on the
circumstances under which it was raised.63
F. Heilman’s Complicity in the Circumstances Raising His Limitations Defense
Courts also often bar an otherwise valid limitations defense when, as here, the
defendant attempts to present it with unclean hands by creating the very circumstances for
its application. For example, in Spaziano v. Florida, the Supreme Court upheld a judge’s
rejection of a defendant’s requested lesser-included instruction when the defendant refused
to also waive his limitations defense to the lesser-included offense.64 The Court explained
62
See Proctor, 967 S.W.2d at 844 (“We also conclude that placing limitations in
the second Marin category is equally inappropriate. However important the statute of
limitations might be to a defendant in a given case, the statute can hardly be deemed
‘fundamental to the proper functioning of our adjudicatory system.’ Indeed, at common
law there was no limitation as to the time within which offenses could be prosecuted.”).
63
See Grado, 445 S.W.3d at 739.
64
Spaziano v. Florida, 468 U.S. 447, 456–57 (1984), abrogated on other grounds
by Ring v. Arizona, 536 U.S. 584 (2002).
HEILMAN—17
that to hold otherwise would require “that the jury be tricked into believing that it has a
choice of crimes for which to find the defendant guilty, [when] in reality there is no
choice.”65 The Court instead gave Spaziano the “choice between having the benefit of the
lesser included offense instruction or asserting the statute of limitations on the lesser included
offenses.” 66
Citing Spaziano, in State v. Yount, we found a defendant estopped from attacking his
conviction for a time-barred lesser-included offense when the defendant himself requested
the lesser-included instruction.67 When the jury convicted him of only the lesser-included
offense, Yount raised his limitations defense and moved to set aside the judgment.68 We
reversed the trial court’s granting of that motion, concluding that Yount could not both
request the benefits of the instruction and then attack his conviction based on the
instruction.69
Heilman faced a similar choice. He could retain his limitations defense to the
misdemeanor offense and risk a state-jail felony indictment, or forfeit (or in this case waive)
his limitations defense and plead to the misdemeanor offense. Heilman chose the latter and
65
Id. at 456.
66
Id.
67
State v. Yount, 853 S.W.2d 6, 10 (Tex. Crim. App. 1993).
68
Id. at 7.
69
Id. at 9–10.
 HEILMAN—18
cannot now use that choice to attack the trial court’s acceptance of his plea and imposition
of sentence. He may regret the choice he made, but he must accept its consequences.
Furthermore, Spaziano and Yount make one thing clear: a statute-of-limitations
defense lacking any ex post facto component does not attack the jurisdiction of the trial
court.70 If it did, Spaziano would have retained the right to attack the trial court’s jurisdiction
if he were found guilty of only the time-barred lesser-included offense. Similarly, if it did,
once the jury had found Yount guilty of only the lesser-included offense, it in effect would
have found that the trial court lacked jurisdiction and no conviction would have been
possible, regardless of who requested the lesser-included instruction. Instead, a limitations
defense standing alone is merely a procedural “act of grace” by the legislature that can be
forfeited.71
III. Conclusion
Heilman’s attempt to renege on his guilty plea after accepting its benefits exposes the
unintended consequences of our prior holding in Phillips v. State. To ensure the sanctity and
finality of plea agreements reached in good faith and at arm’s length, we will no longer
unquestioningly distinguish between factual and pure-law limitations defenses. Instead, in
circumstances lacking any legislative ex post facto violation—and especially when that
70
Id. at 8 (“[A]n indictment which charges the commission of an offense barred
by limitations still confers jurisdiction upon the trial court, such that the defendant must
bring the defect to the attention of the trial court in order to preserve any error.”).
71
Proctor, 967 S.W.2d at 843. See also Phillips, 362 S.W.3d at 626 (Keller, P.J.,
dissenting).
HEILMAN—19
occurs in the context of a good-faith, arm’s length plea agreement—both are Marin category-
three forfeitable rights, as under Proctor v. State. Therefore, because there was no ex post
facto violation, the trial court properly exercised its jurisdiction to accept Heilman’s plea and
Heilman had every right to forfeit (or in this case waive) his limitations defense as part of
that plea. We reverse the holdings of the habeas court and the court of appeals, and we
remand the case to the court of appeals to assess Heilman’s other claims.
DELIVERED: March 18, 2015
PUBLISH