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Harber v. State

Court of Appeals of Texas, Fourth District, San Antonio

August 7, 2019

Christopher M. HARBER, Appellant
v.
The STATE of Texas, Appellee

          From 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

          OPINION

          Luz Elena D. Chapa, Justice

         Christopher 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 acquittal.

         Background

         Harber 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.[1] 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 existing."

         The 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 appealed.[2]

         Statute of Limitations

         Harber 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."

         The 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 lesser-included offense.

         In 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.

         Harber 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.

         Generally, "[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.[3] See id. at 165; Proctor, 967 S.W.2d at 845.

         Although 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).

         The 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 defense.

         In both 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.

         Sufficiency of the Evidence

         In his 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.

         The Evidence

         Calvin 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.

         When 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.

         Brooks 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.

         Although 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 ...

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