March 20, 2015



Texas Court of Criminal Appeals

Leija v. State               3/18/15           



When the State’s motion to recuse an appellate judge from considering a case was denied by the appellate court, was the State entitled to have a petition for discretionary review accepted by the Court of Criminal Appeals and a stay granted before the appeals court issued its judgment in the case?


No. There is no specific right to file a PDR from an interim appellate ruling, and interlocutory appeals are generally not permitted in Texas criminal proceedings. After the appellate court issues a judgment on the case, the motion to recuse may be reviewed at that time. Read the opinion.


This is an interesting opinion. The Court declines to get involved in a ruling on a motion to recuse in the court of appeals without a final judgment in the court of appeals. The court of appeals split 4–3 on the motion to recuse. That court is probably a tense place to work these days.

Ex Parte Heilman        3/18/15



When the defendant waived the statute of limitations and pled guilty to a time-barred defense, was he permitted to then raise the statute of limitations on appeal as a bar to his plea?


No. Unless the claim is that a new statute that extends the statute of limitations has amounted to an ex post facto violation, all statute of limitations claims are forfeitable rights. Read the opinion.

Concurrence (Newell, J.):

While the court should not frivolously overturn precedent, this case highlighted such an obvious error in precedent that it left no choice but to overrule Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App. 2011). Read the concurrence.

Dissent (Meyers, J):

The court should not overrule Phillips, it should overrule the case Phillips was based on, Proctor v. State, 967 S.W. 2d 840 (Tex. Crim. App. 1998). Read the dissent.

Dissent (Johnson, J):

The correct disposition of this case does not involve overruling any precedent. The facts are unique because the defendant agreed to revive a time-barred offense and plead guilty to it as a benefit to himself. That’s the reason he cannot complain on appeal. Read the dissent.

Dissent (Alcala, J):

Because there was no ex post facto issue in this case, it was distinguishable from Phillips and did not require overruling precedent. Read the dissent.


The Court does not willy-nilly overrule its own precedent. But Phillips was not a unanimous decision at the time. This Court over the last 20 years has consistently narrowed the circumstances in which a defendant can complain of errors without objecting in the trial court. There are sound policy reasons for that approach. This defendant not only did not object, but he also affirmatively agreed to disposition in this manner, but then he tried to back out of the deal in appellate court. This opinion is consistent with the Court’s prevailing approach to preservation of error and is a good and just result.


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