Court of Appeals of Texas, Fourth District, San Antonio
Christopher M. HARBER, Appellant
The STATE of Texas, Appellee
the 379th Judicial District Court, Bexar County, Texas Trial
Court No. 2016CR5166 Honorable Ron Rangel, Judge Presiding
Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Liza
A. Rodriguez, Justice
Elena D. Chapa, Justice
Harber was convicted by a jury of criminally negligent
homicide. Harber appeals the judgment, arguing the
prosecution is barred by limitations and the evidence is
legally insufficient to support the verdict. We hold Harber
forfeited his limitations defense by failing to raise it in
the trial court. However, we conclude the evidence is
insufficient to establish criminally negligent homicide. We
therefore reverse the judgment and render a judgment of
was driving a mobile home hauler east on Interstate 10 on
July 27, 2012, when he drove onto the right shoulder of the
road and hit a tow truck driver. The tow truck driver, Travis
Danner, died at the scene. In June 2016, Harber was indicted
for manslaughter. The indictment alleged Harber recklessly
caused the death of an individual by driving and operating a
commercial vehicle without a valid driver's license or a
valid commercial driver's license, driving and operating
a motor vehicle at a speed that was not reasonable and
prudent under the circumstances then existing, failing to
apply the brakes in a timely and reasonable manner, failing
to maintain a single lane of traffic, and driving on an
improved shoulder. Prior to the beginning of trial, the
State, with the trial court's permission, amended the
indictment by striking the allegation that Harber was
"driving and operating a motor vehicle at a speed that
was not reasonable and prudent under the circumstances then
case was tried to a jury in August 2017, more than five years
after the accident. The jury was charged on manslaughter and
the lesser-included offense of criminally negligent homicide.
The jury found Harber guilty of criminally negligent homicide
and found he used or exhibited a deadly weapon during the
commission of the offense. Harber pled true to the repeat
offender enhancement allegations, and the jury assessed
punishment at fifteen years in prison. Harber timely
argues the prosecution for criminally negligent homicide was
time-barred and he should be allowed to raise his statute of
limitations defense for the first time on appeal pursuant to
the holding of Phillips v. State, 362 S.W.3d 606
(Tex. Crim. App. 2011). He contends the holding of Ex
parte Heilman, 456 S.W.3d 159 (Tex. Crim. App. 2015),
which overruled Phillips and held that a limitations
defense lacking any ex post facto component may be
forfeited by failing to invoke it, should not be applied
retroactively because the holding "was unforeseeable . .
. [and] would be procedurally burdensome and unjust."
indictment filed in June 2016 charged Harber with
manslaughter, alleging he recklessly caused Danner's
death on July 27, 2012. There is no statute of limitation for
manslaughter. Tex. Code Crim. Proc. art. 12.01(1)(A). At
trial, the jury was charged on both manslaughter and the
lesser-included offense of criminally negligent homicide.
Criminally negligent homicide is a state jail felony and
falls within the three-year limitation period for "all
other felonies." See id. art. 12.01(7). A
charge of criminally negligent homicide became
limitations-barred in July 2015, almost a year before the
indictment was presented in June 2016. Harber did not object
to submission of the charge and did not assert a limitations
defense at any time before trial, during trial, or in a
post-judgment motion. The record does not reflect whether
Harber or the State requested the charge on the
Heilman, the Texas Court of Criminal Appeals held
"a statute-of-limitations defense lacking any ex
post facto component . . . is merely a procedural
'act of grace' by the legislature that can be
forfeited." 456 S.W.3d at 168 (citing Proctor v.
State, 967 S.W.2d 840, 843 (Tex. Crim. App. 1998)). In
so doing, it reaffirmed its 1998 decision in Proctor v.
State that the statute of limitations is not
jurisdictional and is not an absolute, systemic requirement;
rather, it creates a defense that must be implemented upon
request and is forfeited if not asserted at or before trial.
See Heilman, 456 S.W.3d at 168-69; Proctor,
967 S.W.2d at 844. The court in Heilman also
overruled its 2011 decision in Phillips v. State,
which held only limitations defenses that require factual
development beyond the charging instrument are forfeited by
failing to assert them at trial; whereas, limitations
defenses based on "pure law"-ones that are apparent
on the face of the charging instrument-give rise to an
absolute bar to prosecution that may be raised at any time.
Heilman, 456 S.W.3d at 162-64.
argues Heilman should not be applied retroactively
and the rule announced in Phillips should apply
because it was in effect at the time of the accident. He
contends that pursuant to Phillips the prosecution
for criminally negligent homicide was absolutely barred
without him needing to raise the defense because it was a
"pure law" limitations defense. Harber argues
retroactive application of Heilman's procedural
default holding to him is an ex post facto violation
and a violation of his due process rights. We disagree.
"[o]nly the legislature can violate either the federal
or state Ex Post Facto Clauses because . . . both
are 'directed at the Legislature, not the
courts.'" Id. at 163 (quoting Ortiz v.
State, 93 S.W.3d 79, 91 (Tex. Crim. App. 2002)). In
assessing a claim of an ex post facto violation,
"we look beyond the actor that is directly committing
the alleged violation for some legislative origin of the
alleged violation." Id. at 165. There was no
legislative ex post facto component to Harber's
limitations defense because no legislative act purported to
authorize or revive the otherwise time-barred prosecution for
criminally negligent homicide. See id. at 168-69.
Harber does not point to any legislative origin of the
alleged ex post facto violation. Rather, the source
of Harber's time-barred conviction is his forfeiture of
the defense pursuant to a rule of procedural default that is
of judicial, not legislative origin. See id. at 165;
Proctor, 967 S.W.2d at 845.
the Ex Post Facto Clause does not apply to judicial
actions, an unforeseeable judicial construction of a criminal
statute, applied retroactively, can function like an ex
post facto law and violate the Due Process Clause.
See Bouie v. City of Columbia, 378 U.S. 347, 353
(1964); Heilman, 456 S.W.3d at 166. "If a
judicial construction of a criminal statute is unexpected and
indefensible by reference to the law which had been expressed
prior to the conduct in issue, it must not be given
retroactive effect." Bouie, 378 U.S. 354
(quotation omitted). However, this due process limitation is
not coextensive with the ex post facto prohibition.
See Rogers v. Tennessee, 532 U.S. 451, 459 (2001).
The due process limitation is rooted in the principle that a
criminal statute must give fair warning of the conduct it
criminalizes and protects against judicial enlargement of a
criminal statute. Heilman, 456 S.W.3d at 166 (citing
Rogers, 532 U.S. at 457).
court's opinion in Heilman did not interpret or
enlarge a criminal statute, nor did it revive a statute of
limitation. The charge of criminally negligent homicide
against Harber was still barred by the statute of limitations
when the case was tried in 2017, and Harber could have
asserted the defense. Moreover, Heilman was decided
more than a year before Harber was tried; he was thus on
notice that he was required to invoke the limitations
Proctor and Heilman, the judicial change to
the preservation rules announced therein was applied
retroactively to increase the procedural burden on the
defendant. And in each case, the Court of Criminal Appeals
held retroactive application of the rule announced in the
decision did not run afoul of the Due Process Clause of the
Fifth Amendment. Heilman, 456 S.W.3d at 166;
Proctor, 967 S.W.2d at 845. In Proctor, the
court explained that its decision "even if applied to
appellants, will not deprive them, retroactively, of fair
warning of what conduct will give rise to which criminal
penalties . . . [and] does not retroactively alter the
definition of aggravated robbery as it existed in 1982, its
range of punishment, or the substantive defenses that were
available with respect to it." Proctor, 967
S.W.2d at 845. Likewise, applying Heilman to Harber
does not violate due process. Because Harber failed to raise
his statute of limitations defense in the trial court, he
forfeited it and is precluded from raising it on appeal.
of the Evidence
legal insufficiency point, Harber argues the evidence is
insufficient to support the conviction for criminally
negligent homicide because the State did not prove the
alleged acts of criminal negligence created a substantial and
unjustifiable risk that Harber failed to perceive and caused
Danner's death, and it did not show any seriously
blameworthy conduct that was a gross deviation from the
ordinary standard of care.
Brooks testified that on July 27, 2012, he was driving from
his home in San Antonio eastbound on Interstate 10 between
San Antonio and Seguin when the front driver's side tire
on his pickup truck blew out. He pulled over onto the grass
past the shoulder on the right side of the highway and called
for a tow truck. Brooks testified it was around 5:00 on a hot
Friday afternoon and traffic was heavy and "moving
pretty fast." At that location, the highway has two
lanes going in each direction with a grass median in between.
Brooks testified the speed limit was 70 or 75 miles per hour.
the tow truck arrived, the driver, Travis Danner, had Brooks
move his truck back onto the shoulder where the ground was
level. Danner parked the tow truck behind Brooks, at an angle
to the highway, with the front of the tow truck pointing
toward the road. According to Brooks, this left room for
Danner to work on the tire and walk between the vehicles
without being in danger of stepping into the traffic lane.
Brooks testified Danner left his emergency lights flashing
and worked on the tire for five or ten minutes.
testified that after Danner finished working on the tire, he
started putting his tools away in an outer compartment on the
driver's side of the tow truck, just behind the cab.
Brooks testified that at that time, Brooks had walked away
from the highway onto the grass with his back to the road. He
heard a crash, and when he turned around, he saw the tow
truck had been hit by Harber's truck and saw Harber's
truck hit the back of Brooks's truck. Brooks testified
Harber's truck continued moving forward and then crossed
left across the highway and went into the center median where
it "exploded." Brooks said he saw the driver jump
out of the truck and roll around in the grass. Brooks then
turned back and saw Danner on the ground. His clothes had
been torn off him and he was unresponsive.
several people stopped at the scene of the accident, the
Bexar County Sheriff's Department identified only one
person who saw the accident happen. Scott Candella testified
he was driving east on I-10 in the right lane with his wife
and three children when the accident occurred. Candella gave
a statement to one of the deputies at the scene, stating,
"I think it was sideswiped, not sure exactly how it was
hit." At trial, Candella testified:
Q. When you were driving on I-10, do you remember what lane
of traffic you were driving in?
A. I was in the right lane.
Q. In the right lane. How many lanes of traffic were there in
total, do you remember?
A. Two lanes.
Q. So there was a fast lane/left lane, and a slow ...