PD-1510-15 PD-1510-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/20/2015 4:42:17 PM Accepted 11/20/2015 5:10:45 PM IN THE COURT OF CRIMINAL APPEALS OF TEXAS ABEL ACOSTA CLERK EX PARTE $ $ $ No. $ ANDRE DEROSIER $

STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM TFIE SECOND DISTRICT OF TEXAS AT FORT WORTH IN CAUSE NUMBER O2-I5.OOIOO-CR AND FROM TFIE 3íTTHJUDICIAL DISTRICT COURT DENTON COUNTY, TEXAS IN CAUSE NUMBER F-2002-0330-E

PAUL JOHNSON Criminal District Attorney Denton County, Texas CATHERINE LUFT Assistant Criminal District Attomey Chief, Appellate Division LARA TOMLIN Assistant Criminal District Attorney 1450 East McKinney, Suite 3100 Denton, Texas 76209 State Bar No. 24075169 (e40) 34e-2600 November 20, 2015 FAX (940) 349-2601 lara.toml in@dentoncounty. com IDENTITY OF PARTIES AND COUNSEL Appellant ANDRE DEROSIER F'RED MARSH ED\ryARD NOLTER South Woodrow Denton, Texas 76205 APPELLATE COLINSEL CARY PIEL West Oak Suite 302 Denton, Texas 76201 TRIAL COLINSEL Appellee THE STATE OF TEXAS PAUL JOHNSON Criminal District Attorney CATHERINE LUF'T Assistant Criminal District Attorney Chief, Appellate Division LARA TOMLIN Assistant Criminal District Attorney State Bar No. 24075169 1450 East McKinney, Suite 3100 Denton, Texas 76209 (e40) 34e-2600 FAX (e40) 34e-27 sr lara.toml in@dentoncounty. com APPELLATE COUNSEL MATTHE\ry SHOVLIN ANTHONY PAUL Assistant Criminal District Attorneys TRIAL COLINSE,L TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL I

INDEX OF AUTHORITIES V

STATEMENT REGARDING ORAL ARGUME,NT 1

STATEMENT OF THE CASE 1

STATEMENT OF PROCEDURAL HISTORY 2

QUESTIONS PRESENTED FOR REVIEW 2

If a defendant agrees to plead to a lesser offense, that is not actually a lesser included offense, of an indicted offense over which the trial court has proper subject-matter jurisdiction, can a defendant lafer attack that bargained-for judgment based on a subject-matter jurisdiction claim? (C.R. at 4-6,10-24.9I-94; R.R. al.5-42; State's Exhibit l-3) 2

ARGI-IMENT J

Appellant wanted to plead to a lesser offense, knowingly and willingly pleaded to a lesser offense that was not a lesser-included offense, and enjoyed the benefits of the lesser conviction he agreed to for 12 years ........... 3

The Fort Worth Court of Appeals opinion did not consider that the trial court had jurisdiction of Appellant's originally-charged case, and the lesser offense was agreed to by the parties after jurisdiction had already been established..........,.. .,............,.4 The Fort Worth Court of Appeals dismissed the applicability of Rhodes and Murray, and while neither case addresses the specific facts in this case, both cases deal with issues of equity in relation to erroneous judgment 5

ii Rhodes held that an appellant is estopped from collaterally attacking too-lenient judgments, and may or may not be estopped in a subject-matter jurisdiction claim... 5

The Murray opinion assumed the State was not barred from advancing estoppel in a subject-matter jurisdiction claim 7

Heilman did not address this situation, and interprets Rhodes very differently than Murray...... 8

The case law regarding estoppel and subject-matter jurisdiction is murky, but the reasoning of the case law suggests that estoppel can apply 9 Even if this Court finds no holdings supporting estoppel barring a subject-matter jurisdiction claim, this Court should address the issue as it has not been specifically decided ..........9 Because of the Fort Worth Court of Appeals' blind reliance on subject-matter jurisdiction, it did not take into account the facts in this case, where Appellant agreed to and benefitted from his bargained-for sentence and where Appellant should be barred from his collateral attack for subject-matter jurisdiction.....,.....,.'......... l1 PRAYER FOR RELIEF t4 CERTIFICATE OF COMPLIANCE l5 CERTIFICATE OF SERVICE l5 APPENDICES: A Indictment B Judgment C Order Denying Application for Writ of Habeas Corpus

lll D Findings of Fact and Conclusions of Law E Ex parte Derosier, No. 02-15-00100-CR, 2015 Tex. App. LEXIS I1155, at *5 (Tex. App.-Fort Worth Oct.29,2015, pet. filed)

IV INDEX OF AUTHORITIES

Cases DeDonato v. State S.W.zd 164 (Tex. Crim. App. 1991) 9,l2 Ex parte Derosier LEXIS I I I 55 No. 02- 15-00100-CR, 2015 Tex. App. (Tex. App.-Fort Worth Oct.29,2075, pet. filed) passim Ex Parte Heilman 456 S.W.3d 159 (Tex. Crim. App. 2015) .........8 t2 Ex Parte Sledge 391 S.W.3d 104 (Tex. Crim. App. 2013) 9,l2 Hall v. State 225 S.W.3d 524 (Tex. Crim. App. 2007) . 10, I l, 12

Marin v. State S.W.2d275 (Tex. Crim. App. 1993) .......'..... 11

McKínney v. State S.W.3d366 (Tex. Crim. App. 2006) 10,12 Murray v. State S.V/.3d 874 (Tex. Crim. App. 2009) ......passim People v. Wehb 186 Cal. App. 3d 401 (Cal. App. 3d Dist. 1986)...... 8

Prystash v. State S.W,3d 522 (Tex. Crim. App. 1999) 71,12 Rhodes v. State 240 S.W.3d 882 (Tex. Crim, App. 2007) ......passim

v IN THE COURT OF CRIMINAL APPEALS OF TEXAS EX PARTE $ $ $ No. $ ANDRE DEROSIER $

STATE'S PETITION FOR DISCRETIONARY REVIEW

TO TI{E HONORABLE COURT OF CRIMINAL APPEALS: Comes now the State, by and through its Assistant District Attorney, and respectfully urges this Court to grant discretionary review of the above

named cause.

STATEMENT REGARDING ORAL ARGUMENT Because the issue presented in this case - whether estoppel can bar a

complaint of subject-matter jurisdiction when there has been a negotiated plea bargain - has not been addressed by this Court, the State believes oral argument would be helpful to the courts of the State of Texas and the parties. The State

therefore requests oral argument.

STATEMENT OF CASE Appellant was indicted for six counts of indecency with a child and later pleaded guilty to a class A terroristic threat on November 13, 2002 (see Appendix A [Indictment]; Appendix B [Judgment]). Twelve years after

Appellant pleaded, he complained that the trial court did not have subject-matter jurisdiction over the terroristic threat charge because it was not a lesser-included offense to the original charges and therefore the district court did not have jurisdiction (C.R. at 6, 10).

STATEMENT OF PR EDURAL HISTORY Appellant hled an application for writ of habeas corpus on December 11 , 2014, the trial court held a hearing on the application on February 5, 2014, the trial court denied Appellant's application on February 26,2015, and the trial court filed written findings of fact and conclusions of law on May 12,2015 (2 R.R. at l; C.R. at l0; Appendix C fOrder Denying Application for Writ of Habeas Corpusl; Appendix D fFindings of Fact and Conclusions of Law]). Appellant appealed the trial court's ruling, the Fort Worth Court of Appeals handed down its opinion on October 29, 2015, and the Court rendered a reversal and remanded the case to the trial court (Appendix E *5 lEx parte Derosier, No. 02-15-00100-CR, 2015 Tex. App. LEXIS 11155, at (Tex. App.-Fort Worth Oct. 29, 2015, pet. f,rled)l). No motions for rehearing were filed.

OUESTION F'OR REVIEW If a defendant agrees to plead to a lesser offense, that is not actually a lesser included offense, of an indicted offense over which the trial court has proper subject-matter jurisdiction, can a defendant later attack that bargained-for judgment based on a subject-matter

jurisdiction claim? (C.R. at 4-6, 10-24. 91-94; 2 R.R. aL 5-42; State's Exhibit 1-3).

ARGUMENT The Fort Worth Court of Appeals answered an important question of law, regarding estoppel and plea agreements, that this Court has not yet addressed.

Further, the Fort Worth Court of Appeals has made an inequitable decision.

Appellant wanted to plead to a lesser offense, knowingly and willingly pleaded to a lesser offense that was not a lesser-included offense, and enjoyed the benefits of the lesser conviction he agreed to for 12 years.

Appellant was indicted for six counts of indecency with a child, the State originally offered eight years of deferred adjudication, and Appellant's attorney indicated that Appellant would plead to a class A assault (Appendix A; C.R, at 4; State's Exhibit 1,2). Appellant took the felony case to hrial, and during a recess on the second day of trial both sides reached a plea agreement, the trial court advised Appellant of his rights, the trial court granted a motion to amend the indictment and dismissed the six counts of indecency with a child, and Appellant pleaded guilty to a class A terroristic threat charge (C,R. at 6,31,34,36; C.R. Supp. at 10).

The "Plea Bargain Agreement" reached by Appellant and the State, appears to have originally been for the offense of simple "assault," and that offense was crossed out and "terroristic threat" was added by hand (C.R. at 38). Appellant agreed to plead no contest, and receive a punishment of one day, with one day of

time credit, thus not having to serve any additional time in jail or complete any kind of community supervision (C.R. at 38).

Twelve years after Appellant knowingly pleaded to the terroristic threat charge in order to avoid facing the possible consequences of proceeding with trial on the six counts of indecency with a child, Appellant complained that the trial court did not have subject-matter jurisdiction over the terroristic threat charge, because it was not a lesser'included offense to the original charges, and therefore the district court did not have jurisdiction (C.R. at 6, 10).

The Fort Worth Court of Appeals opinion did not consider that the trial court had jurisdiction of Appetlant's originally-charged case, and the lesser offense was agreed to by the parties after jurisdiction had already been established.

The Fort Worth Court of Appeals stated that "[i]t is axiomatic thal subject-matter jurisdiction cannot be conferred by agreement of the parties" (Appendix E at *5). Here, the district court had jurisdiction of the six counts of indecency with a child (Appendix A). Therefore, jurisdiction was established and the plea agreementothatthe case resulted in, was not a situation in which Appellant was being unwillingly prosecuted in an incorrect court (Appendix A; C.R. at 6,31, 34, 36,38; C.R. Srpp. at 10). Appellant agreed to a lesser charge, benefitted greatly for 12 years from the lesser charge, and did not object to subject-matter jurisdiction until 2Ol3 (Appendix A; C.R. at 6,31,34,36, 38; C.R. Supp, at l0).

The Fort Worth Court of Appeals dismissed the applicability of Rhodes and Murray, and while neither case addresses the specific facts in this case' both cases deal with issues of equity in relation to erroneous judgments.

The Fort Worth Court of Appeals stated that State's reliance on Muruay and Rhodes was misplaced, and while the facts of these cases are not exactly like the current case, both cases address the equitable principle of estoppel in the context of an appellant attacking a judgment with a too-lenient sentence, See Murray v. State, S,W.3d 874 (Tex. Crim. App. 2009); Rhodes v. State,'240 S.W.3d 882 (Tex. Crim. App. 2007). This is akin to the current case in which Appellant was

convicted of a lesser charge, that was not actually a lesser-included offense, and that conviction was lenient and void. Derosier,z}ls Tex. App. LEXIS 11155.

Rhodes held that an appellant is estopped from collaterally attacking too-lenient judgments, and may or may not be estopped in a subject-matter jurisdiction claim.

The Fort Worth Court of Appeals stated that. Rhodes is inapplicable to the facts in this case and found that there was "nothing in Rhodes to suggest

that estoppel-like doctrines apply when a court does not have

subject-matter jurisdiction over a bargained-for judgment." Derosier,20l5 Tex. App. LEXIS 11155, at*6-7. But in Rhodes, this Court found that "[a] defendant who has enjoyed the benefits of an agreed judgment prescribing a too-lenient punishment should not be permitted to collaterally attack that judgment on a later date on the basis of the illegal leniency." Rhodes, 240 S.W.3d at 892. Here,

Appellant is collaterally attacking an agreed-to void judgment that sentenced him to a too-lenient punishment that Appellant enjoyed for l2 years. Although there was no indication that the parties entered into a plea agreement in Rhodes, the case addressed the inequities similar to the current situation and the Fort Worth Court of Appeals wrongly found Rhodes inapplicable. See Rhodes,240 S.W.3d at 882-86.

Rhodes states that the only exception to estoppel by judgment is for challenges to subject-matter jurisdiction, but does not address whether subject-rnatter jurisdiction is an exception to the other forms of estoppel discussed by the court. Id. at 891-92. The case also includes a lengthy discussion on the inequity of a defendant entering a plea agreement that imposes an illegal sentence, benefiting from and quietly enjoying that sentence, and then attacking the judgment at alater date when it is in his interest, despite his part in procuring the lenient sentence. Id. at 891-92. Further, this Court found bhat Rhodes held that "a 'challengef ] to the subject-matter jurisdiction of the court rendering the judgment' may be exempt from estoppel," showing that this Court may not take the hardline stance against estoppel in the subject-matter jurisdiction context that the Fort Worth Court of Appeals has interpreted. See Murray,302 S.W.3d at 882 n.42 (enrphasis added); Rhodes,240 S.W.3d at 891; see also Derosier,2015 Tex. App.LEXIS I I155, at*5,14.

The Murray opinion assumed the State was not barred from advancing estoppel in a subject-matter jurisdiction claim.

In Murray, this Court assumed without deciding "that the State is not barred by a subject-rnatter jurisdiction defect from advancing an estoppel claim." Murray,302 S.W.3d at 882; see Derosier,2015 Tex. App, LEXIS 11155, at*7.

Yet, the Fort Worth Court of Appeals found that Murray also suggested nothing to support that estoppel-like doctrines apply when a court lacks subject-matter jurisdiction over the bargained-for judgment. Derosier, 2015 Tex. App. LEXIS 1 I 155, at *7 -8.

Murray is applicable as estoppel did not apply in that case only because

Murray objected. Muruay,302 S.W.3d at 882. This Court found that estoppel did not apply because Murray did not accept the benefits of his conviction and instead objected to a lesser offense that was not actually a lesser-included offense of the felony for which he was indicted. Murray,302 S.W.3d at 882. Here, there was no such objection. Murray objected to the plea agreement when the trial court still had the power to reject the plea agreement, and the Court stated without deciding that an objection could have only been defeated with "a showing of bad faith on the defèndant's part or substantial prejudice suffered by the State." Murray, S.W.3d a1883. Here, the State is substantially prejudiced as jeopardy attached to the charge, 12 years have passed, and there was no objection from Appellant

when the State could have remedied any issue Appellant had with pleading to a lesser offense.

Heilman did not address this situation, and interprets Rhodes very differently than Muruay.

In its opinion in this case, the Fort Worth Court of Appeals cited Heílman, stating that it worked against the State's argument because the case stated that "estoppel does not apply when [a] court lack[s] jurisdiction." See Derosier, 2015 Tex. App. LEXIS I 1 155, at *I l; see also Ex Parte Heilman, 456 S.W.3d 159, 166-167 (Tex. Crim. App. 2015). But, this Court cited Rhodes in that statement, and as discussed, suprq, Rhodes held that estoppel did not apply only to estoppel by judgment, did not involve a plea agreement, and discussed the inequity of an appellant trifling with the courts, as is present in this case. See Rhodes, 240 S.W.3d at 891-92; see also People v Webb,

186 Cal. App. 3d 401,412 (Cal. App. 3d Dist. 1986). Heilman did not address the specific situation here, and this statement by the court is in contrast to the Murray opinion that more closely addressed this situation and assumed that the State was not barred from an estoppel claim in the context of subject-matter jurisdiction.

See Muway,302 S.W.3d a|882; see also Heilman,456 S.W.3d at 166-67

The case law regarding estoppel and subject-matter jurisdiction is murky' but the reasoning of the case law suggests that estoppel can apply.

The Fort \Morth Court of Appeals is correct that this was Appellant's first application for writ of habeas co{pus, but the State discussed Sledge not to argue it was not his first application, but to point out that abar to estoppel in the context of subject-matter jurisdiction is not so axiomatic, as there have been cases where estoppel was not barred on a subject-matter jurisdiction claim. See

Ex Parte Sledge, 391 S.W.3d 104, 108 (Tex. Crim. App. 2013); see also DeDonato v. State,8l9 S.W.2d 164, 166-67 (Tex, Crim. App. 1991). The concuffence in DeDonato even pointed out the majority in that case oveffuled "the basic and long-held principle that a lack of jurisdiction will render a conviction void and not merely voidable." DeDonato, 819 S.tM.2d at 167 (an appellant waived a claim of lack of subject-matter jurisdiction where the information did not contain the elements needed to discern the level of offense she committed).

Even if this Court finds no holdings supporting estoppel barring a subject- matter jurisdiction claim, this Court should address the issue as it has not been specifically decided.

This Court has not specifically decided this issue under these circumstances.

But, as discussed supra, has suggested that the estoppel issue in a plea-bargain case in which the agreed-to charge lacks subject-matter jurisdiction is an open question.

See Murray,302 S.W.3d at 882 n.42; Rhodes,240 S.W.3d at 891. The topic has

been more specifically discussed in conculrences and dissents of this Court.

For example, Presiding Judge Keller stated in her dissent \n Hall that, if an appellant requests an action, then he is barred by estoppel from complaining of that action; when an appellant invokes the benefit of a lesser offense by not objecting to that lesser offense, he should be estopped from later complaint, Hall v, State, 225 S.W.3d 524, 537-38 (Tex. Crim. App. 2007) (Keller, C.J., dissenting).

Deciding otherwise allows a defendant to acquiesce to a court action that benefits him, by convicting him of a lesser crime than charged, which is not a

lesser-included offense, and then allows defendant to later successfully challenge that the lesser charge he should have never been given. Id. Additionally, the Murray court stated that in her McKinney concuffence, Presiding Judge Keller "suggestfed] that estoppel could prevent a defendant from challenging a

district court judgment on a misdemeanor offense that was not in fact included in the indictment if he requested submission of that offense so long as the courl had subject-matter jurisdiction over the charged offense." Murrøy,302 S.W.3d at 882; see McKinney v, State, 207 S.W.3d 366, 37 6 (Tex. Crim. App. 2006) (Keller, P.J. concurring). Presiding Judge Keller termed this situation "beneficial acquiescence." Hall, 225 S.V/.3d at 538 (Keller, C,J., dissenting). Ifere, the district court retained jurisdiction over the charged offense and Appellant bargained for the agreed judgment on the lesser, but not lesser-included, offense (Appendix A; C.R. at6,31,34,36,38; C.R. Supp. at 10).

Judge Hervey also addressed the inequity of an appellant, asking for a lesser offense that was not a lesser-included offense, in her Hall dissent". Id. at 540 (Hervey, J, dissenting). When a conviction on a lesser charge that is not actually a lesser-included offense is void, it "permitlsl a defendant to request a beneficial lesser charge and, if acquitted of the greater charge and convicted of the

defense-requested lesser charge, successfully complain for the first time on appeal that such a charge should never have been given." Id. (Hervey, J. dissent).

Judge Hervey found fhal Marin and Prystash "do not support such an unusual result." Id. (Heweyo J., dissent); see Prystash v. State,3 S.W.3d 522 (Tex. Crim.

App. 1999); Marin v, State,851 S.W.2d275 (Tex. Crim. App. 1993). Under the Fort Worth Court of Appeals opinion, this case has "such an unusual result." See id. (Hervey, J., dissenting).

Because of the Fort Worth Court of Appeals' blind reliance on subject-matter jurisdiction, it did not take into account the facts in this case, where Appellant agreed to and benefitted from his bargained-for sentence and where Appellant should be barred from his collateral attack for subject-matter jurisdiction.

Appellant was advised of his rights by his attorney, admonished by the court, and aware of his rights when he agreed to the one-day confinement offer on the terroristic threat charge without objection (C.R. at 6, 31, 38, 40, 43; C.R. Supp. at 10). Appellant enjoyed the benefits of the bargain for 12 years, and is now complaining of the error he agreed to, in order to try to invalidate the lesser

1l conviction and have no conviction for any charge. See DeDonøto,819 S.W.2d at 166-67; Murroy, 302 S.W.3d at 882; Rhodes, 240 S,W.3d at 891-92; Hall, 225 S.W.3d at 537-40; McKinney,207 S,W.3d at 376 (Keller, C.J., concuning); Prytash,3 S.W.3d at 531.

The Fort Worth Court of Appeals relied on subject-matter jurisdiction too much in this case, without looking at what actually happened in this case - Appellant was indicted, the district court had subject-matter jurisdiction, and for his benefit he pleaded to a misdemeanor instead of continuing his trial on the felony (Appendix A; C.R. at 6, 31, 34, 36, 38; C.R. Supp. at l0). It is an inequitable decision for this conviction to not stand. See Derosier, 2015 Tex. App. LEXIS 11155, at *5-7. Appellant is barred by estoppel from now complaining of subject-matter jurisdiction. See Sledge, 391 S.W.3d at 108;

Murray,302 S.W.3d at 882; Rhodes,240 S.W.3d at 891-92; McKinney, 207 S.W.3d at 376 (Keller, C.J., concurring).

Allowing for this attack is unjust, and it enables an appellant to use

subject-matter jurisdiction as a sword to attack a plea bargain he agreed to, instead of a shield to protect his rights against void judgments imposed by the State andlor judiciary .' See Heilman,456 S.W.3d aT" l7l; Rhodes,240 S.W.3d af 891-92. This was not a subject-matter jurisdiction issue in which the prosecutor walked into the district court with a misdemeanor case. Here, Appellant knowingly pleaded to

l2 a lesser offense, and got the benefit of that lesser offense, that was not actually a

lesser-included offense. And now, the State is prejudiced as Appellant enjoyed the benef,rts of the lesser charge he agreed to for 12 years, and since jeopardy has

attached, the State cannot cure any elror that it may have been able to cure at the time of the plea.

Accordingly, the State requests this Court to reverse the Fort Worth Court of Appeals opinion and reinstate the trial court's judgement.

PRAYER FOR RELIEF Accordingly, the State of Texas prays that the Court of Criminal Appeals grants review in this case to permit full briefing on the issues presented.

Respectfully submitted,

PAUL JOHNSON Criminal District Attorney Denton Texas

sistant District Attorney 1450 East McKinney, Suite 3100 Denton, Texas 76209 State Bar No. 24075169 (e40) 34e-2600 FAX (940) 349-27sl lara.tomlin@dentoncounty. com

r4 CERTIFICATE OF' COMPLIAN CR, The State certifies that the State's Petition for Discretionary Review in the instant cause contained a word count of 2582, said count being generated by the computer program Microsoft Word that was used to the document.

CERTIFICATE OF SERVICE True copies of the State's Petition for Discretionary Review have been sent by United States mail, postage prepaid, to the appellate attomey for Appellant, Fred Marsh and Ed Nolter, 101 South Woodrow, Denton, Texas 76205, and to the State Prosecuting Attorney, Lisa McMinn, Post Office Box 12405, Austin, Texas 78711, on the ay of November, 2015.

l5 APPENDIX A [Indictment] L CAUSENO.

BOND: l0 J:iLEÐ ¡ri1 - DEFENDANT: ANDRE DEROSIER âillütûgtz-zt_at CHARGE: INDECENCY WnH A CHILD (6 COUNTS) Í ;iì''' ' ' " - i!ii\Gt.yr

CO-DEFENDANT: NONE !!Plrr v

V/ITNESS: IIIV. GEHRKE, LPD #01-07995

TRUE BILL OF INDICTMENT II.JTIIE NAME AND BY AUTHORITY OF THE STATE OF TEXAS COUNT I THE GRAND JURORS, in and for the County of Denton, State of Texas, duly organized, impaneled, and sworn as such, at the January Term, 4.D., 2002, of the District Court of the 2l lth Judicial District in and for said county and state, upon their oaths, present in and to said Court that ANDRE DEROSIER, who is hereinafter styled defendant, on or about the 23rd day of September, 2000, and anterior to the presentment of this lndictment, in the county and state aforesaid, did then and there, with the intent to arouse or gratify the sexual desire ofthe said defendant, intentionally or knowingly engage in sexual contaot with Nydirah Derosier, by touching the genitals of Nydirah Derosier, a child younger than 17 years of age and not the spouse of the defendant; COUNT II And the Grand Jurors aforesaid, duly selected, impaneled, sworn and charged at said term ofsaid cou¡¡ as aforesaid, upon their oaths further present in and to said court that ANDRE DEROSIER, on or about the 20th day of January, 2001, and anterior to the presentment of this indictment, in the County of Denton and State ofTexas, did then and there, with the intent to arouse or gradry the sexual desire ofthe said defenda¡t, intentionally or knowingly engage in sexual contact with Nydirah Derosier, by touching the genitals of Nydirah Derosier, a child younger than l7 years of age and not the spouse of the defendant; COI.JNT III And the Grand Jurors aforesaid, duly selected, impaneled, sworn and charged at said term ofsaid court as aforesaid, upon their oaths further present in and to said court that ANDRE DEROSIER, on or about the 17th day of February, 2001, and anterior to the presentment of this indictment, in the County

cfr:ct,,,,iL DEFBNDANT: DEROSIER PAGE 2

ofDenton and State ofTexas, did then and there, with the intent to arouse or gratify the sexual desire of the said defendant, intentionally or knowingly engage in sexual contact with Nydirah Derosier, by touching the genitals ofNydirah Derosier, a child younger than 17 years ofage and not the spouse ofthe defe¡rdant; COUNT IV And the Grand Jurors aforesaid, duly selected, impaneled, swom and charged at said term ofsaid court as aforesaid, upon their oaths further presenl in and to said court that ANDRE DEROSIER, on or about the lTth day of March, 2001, and anterior to the presentment of this indictment, in the County of Denton and State ofTexas, did then and there, with the intent to arouse or gratify the sexual desirc ofthe said defendant, intentionally or knowingly engage in sexual contact with Nydirah Derosier, by touching the genitals ofNydirah Derosier, a child younger than 17 years ofage and not the spouse ofthe defendant; COUNT V And the Grand Jurors aforesaid, duly selected, impaneled, swom and charged at said term of said court as aforesaid, upon their oaths further prçsent in and to said court that ANDRE DEROSIER, on or about the 2lst day of April, 2001, and anterior to the presentment of this indictment, in the County of Denton and State of Texas, did then and there, with the intent to arouse or gratify the sexual desire of the said defendant, intentionally or knowingly engage in sexual contact with Nydirah Derosier, by touching the gonitals of Nydirah Derosier, a child younger than 17 years of age and not the spouso of the defendant; couNT vI And the Grand Jurors aforesaid, duly selected, impaneled, sworn and charged at said term of said couÍ as aforesaid, upon their oaths further present in and to said court that ANDRE DEROSIER, on or about the 21st day of April, 2001, and anterior to the presentment of this indictment, in the County of Denton and State of Texæ, did then and there, with the intent to arouse or gratify the sexual desire of the said defendant, intentionally or knowingly engage in sexual contact with Nydirah Derosier, by touching the breast ofNydirah Derosier, a child younger than 17 years ofage and not the spouse ofthe defendant; against the peace and dignity ofthe State, BRTICE ÀA(IKS CRMINAL DISTRICT ATTORNEY OF Foreman Jury DENTON COUNTY, TEXAS APPENDIX B IJudgment] FILED AT=- o'clocK _M NO. F-2002-0330-E NOv 2 1 2002 IN Tç{B E 6lãIffi ftmmbtÙ¡o ru, rrxns STATE OF TEXAS BY DISTRICT COURT OF vs. DENTON COI-JNTY, TEXAS A.NDRE DEROSIER

: Lee Gabriel Date of Judgment : Novernber 13,2002 Judge Presiding: Matthew Shovlin Attomey for Attomey for Piel Paul Defendant State Offense TERRORISTIC THREAT Convicted of : (l COUNT) Date Offense April 21,2001 : Class A'Misd. Committed Degree Charging No Contest lndictment Plea Instrument Findings On Plea to N/A : N/A Enhancement Enhancement Findings on Use of Deadly WeaPon : N/A Court Costs : $251,00 Date Sentence : November 13,2002 And any additional wanant fees incurred Imposed PunishmençPlace : ONE (l) Date to : DAY COUNTY JAIL Commence : November 13 2002 of Confinement Total amount Time Credited : oNE (l) DAY of restitution Restitution to Be Paid To: Name: Address: þlrr.6252-l3a : N/A No Victim's

Thedefendant,ANDREDERoslER,havingbeenindictedintheaboveentitledand WITH A CHILD (6 COUNTS)' as numbered cause for the felony offense of INDECENCY alloged in the indictment, and this cause being this day called, the State appeared by her paul and/or Matthew shovrin, and the defendant Assistant criminal District Attorney, Anthony also being present and both parties announced appeared in person and his counsel, Cary Piel, in open court having waived his right of trial by ready and the defendant in person and in writing jury,suchwaiverbeingwiththeconsentandapprovaloftheCourtandnowenteredofrecordon the minutes of the Court and such waiver being with the consent and approval of the Criminal District Attorney of Denton County, Texas, in writing, signed by him, and filed in the papers of this cause before the defendant entered his plea herein, the defendant was duly anaigned and in open Court pled no contest to the charge of TERRORISTIC THREAT; thereupon the defendant was admonished by the Court of the consequences of the said plea; and defendant persisted in entering said plea, and it plainly appearing to the Court that the said defendant is mentally competent and that he is uninfluenced in making said plea by any consideration of fear or by any persuasion or delusive hope of pardon prompting him to confess his guilt, the said plea was accepted by the Court and is now entered of record as the plea herein of the defendant. The defendant in open court, having waived the reading of the indictment, and in writing having waived the appearance, confrontation and oross-examination of witnesses, and agreed that the evidence may be stipulated and consented to the introduction of testimony by afflrdavits, written statements of witnesses and any other documentary evidence, and such waiver and consent having been approved by the Court in writing and filed in the papçrs of the cause; and the Court having received from the Denton County Probation Department a written presentence investigation report, complying with all the requirements set forth in Article 42,12, Section 9 of the Texas Code of Criminal Procedure; and, the Court having hea¡d the defendant's waiver of the reading of the indictment, the defendant's plea thereto, the evidence submitted, and the àrgument of counsel, is of the opinion lrom the evidEnce submitted that the defendant is guilty of TERRORISTIC THREAT.

IT IS THEREFORE FOLIND AND ADJUDGED BY THE COURT, that thc SAid defendant is guilty of the misdemeanor offense of TERRORISTIC THREAT, and that the said defendant committed said offense on the 21st day of April, 2001, and that the punishment is hereby assessed at confinement in the County Jail of Denton County, Texas for ONE (1) DAY, that the defendant be punished in accordance with same and that the State of Texas do have and reoover of the said defendant all costs in this prosecution expended, for which execution will issue.

THEREUPON the defendant was asked by the Court whether he had anything to say as to why said sentence should not be pronounced against him, and he answered nothing in bar thereof, and it appearing to the Court that the defendant is mentally competent and understanding of the English language, the Court, in the presence of said defendant and his counsel, proceeded to pronounce sentence against him as follows: IT IS THE ORDER OF THE COURT that the said defendant, who has been adjudged by the Court to be guilty of TERRORISTIC THREAT, and whose punishment has been assessed by the Court at confinement in tho County Jail of Denton County, Texas, for ONE (1) DAY in accordance with the provisions of the law of said State, and the said defendant is remanded to jail until said Sheriff can obey the direction of this sentence, IT IS FURTHER ADruDGED Al\lD DECREED by this Court that the sentence pronounced herein shall begin this date and that the defendant is granted 1 day credit for time served.

SIGNED this the 13th day of Novernber,2002.

E PRESIDIN RECEIVED COPY:

ANDRE DEROSIER DEFEI.IDÆ.iT DATE:

I/.rll Tl.lE PEnSON wHO l'1r;. :|,räniliis -ltJDG¡'^n¡'¡f ,f:!!i) , ,;;l ::,:: í'.:"':.1:;3D C:l 'i':: tl- lj - OL .J

FINGERPRINT FROM

FINGER OF DEFEND ANT APPENDIX C [Order Denying Application for Writ of Habeas Corpus] C¡use No. X'-2002-0330-e (whcl) EX PARTE $ IN THE 367TH JTJDICIAI s $ DISTRICT COURT OF $ ANDRE DEROSIER $ DENTON COUNTY, TEXAS

oRppR /ô (' *% The Cor¡rt denies Applicant's grounds for relief.

SIGNED on this, ,n 20-.day of February 2015. + nn4, JUDGE PRESIDING APPENDIX D [Findings of Fact and Conclusions of Law] Fau>¡,- Dðlo"Luhc( CauseNo¡W EX PARTB $ IN THE 367,, s $ DISTRICT COU $ ANDRE DEROSIER $ DENTON COUNTY, STATE'S MEMORANDUM AND PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW MEMORANDUM The State is submitting these proposed findings and conclusions for this Court's consideration and requests this Court to adopt these findings and conclusions. An order adopting the State's findings and conclusions will be transmitted to this Court in no less than seven days. Should this Court wish to craft its own fìndings and conclusions, rather than adopt the State's, a copy of this document has been sent via email to this Court.

PROPOSED FTNDINGS OF FACT AND CONCLUSIONS OF LAW The Court, having considered the allegations contained in Applicant's first Application for Writ of Habeas Corpus under a¡1icle I 1.09 and the answer filed by the State, makes the following findings of fact and conclusions of law: FINDINGS OF FACT l. Applicant was indicted for six counts of Indecency 'With a Child on March 7,2002 (see Applicant's Brief, Exhibit l). Applicant's jury trial began on November 12,2002, a jury was selected and sworn, Applicant was arraigned, and Applicant pled not guilty to all counts (see Applicanl's Brief, Exhibit 2).

2. On the second day of Applicant's jury trial, a plea bargain was reached (Applicant's Brief, Exhibit 2). This Court advised Applicant of his rights, the State made an oral motion to amend the Indictment that was granted by this Court, the State made a motion to dismiss the six counts of Indecency V/ith a Child that was granted by this Court, and Applicant pled guilty to, and was found guilty ol Terroristic Threat, a misdemeanor offense (Applicant's Brief, Exhibit 2; see Applicant's Brief, Exhibits 3,4,5,9).

3. Applicant did not object to the motion to amend the indictment that was presented in open court, and his attorney signed off on the State's motion to that effect (Applicant's Brief, Exhibits 2-3).

4. The "Plea Bargain Agreement" reached by Applicant and the State appears to have originally been for the offense of "assault," and that offense was crossed out and "terroristic threat" was added (Applicant's Brief, Exhibit 6).

5. Applicant agreed to plead no contest and receive a punishment of one day with one day of time credit, thus not having to serye any additional time in jail or any kind of community supervision (Applicant's Brief, Exhibit 6).

6, Applicant and his attorney signed a "'Waiver of Jury," in which Applicant agreed he was advised by his attorney of the consequences of this plea, waived his right to an indictment, and pled no contest to Terroristic Threat (see Applicant's Brief, Exhibit 7).

7. Applicant and his attorney also signed the "Court's Admonition of Statutory and Constitutional Rights and Defendant's Acknowledgment" (see Applicant's Brief, Exhibit 8), There he acknowledged that he was charged with the second-degree felony of Indecency With a Child that canied a punishment of two to twenty years in prison and up to a $10,000 fine, but the punishment for thc new charge, Terroristic Threat, was only up to one year in jail and up to a $4,000 fine (Applicant's Briet Exhibit 8), This document also admonished Applicant that he had the right to be tried on an indictment retumed by the grand jury (Applicant's Brief, Exhibit 8),

{,t¡ryfrl*t'r e !tr.4

, CONCLU,S/ON,S OF LAW I, Applicant waived his right to a grand jury indictment by agreeing to the State's amendment. See Teal v. State,230 S.W.3d 172, 174-7s (Tex. Crim.

4pp. 2007).

2. Although a district court typically does not have jurisdiction over misdemeanor offenscs and the Court of Criminal Appeals has held that subject-matter jurisdiction cannot be conferred by agreement and any order entered by a court having no jurisdiction is void, the Court of Criminal Appeals has found that "a defendant cannot enter a plea agreement that imposes an illegal sentence, benefrt from that sentence, and then attack the judgment later when it is suddenly in his interests to do so," and that "[a] defendant who has enjoyed the benefits of an agreed judgment prescribing a too-lenient punishment should not be permitted to collaterally attack that judgment on a later date on the basis of the illegal leniency." See Rhodes v. State,240 S.W.3d 882, 891-92 (Tex, Crim, App. 2007); see also Puente v. State, Tl S.V/.3d 340,342 (Tex. Crim. App. 2002); Garciav.

Día|,596 S.W.zd 524, 527-28 (Tex. Crim. App. 1980); Tex. Code Crim. Proc.

Ann. art. 4.05 (Vemon 2005).

3, The Court of Criminal Appeals has held that there are instances where judgments that are void may not be attacked through a writ. See Ex-parte Sledge, 391 S.W.3d 104, 108 (Tex. Crim, App.20l3).

4. The Court of Criminal Appeals in DeDonato overruled "the basic and long-held principle that a lack ofjurisdiction will render a conviction void and not merely voidable." DeDonato v. State, 819 S.W.2d 164, 166-67 (Tex, Crim.

App. le9l).

5. "[A] parly who accepts the benefit of a judgment that imposes an illegally lenient sentençe is estopped from challenging the judgment at a later time," Murray v, State,302 S.W,3 d874,876 (Tex. Crim, App, 2009).

ó. When an appellant invokes the benefit of a lesser offense by not objecting to that lesser offense, he should be estopped from later complaint, Hall v. State,225 S.W.3 d 524,538 (Tex. Crim, App. 2007).

7. Applicant benefitted from the plea offer he agreed to, as the State dismissed all counts on the Indecency With a Child, and Applicant walked out of the courtroom with a conviction for misdemeanor Terroristic Threat and one day in jail that was covered by back time, and is now complaining of the error he agreed to in order to try to invalidate the lesser charge and lesser punishment so that he will have no conviction for any charge, See Denato, 819 S.W.2d at 166-67; Murray v, State,302 S.W.3d 874,882 (Tex. Crim. App. 2009); Rhodes v, State, S.Vy.3d 882, 891-92 (Tex. Crim. App. 2007); Hall,225 S,V/.3d at 537-540; McKinney,207 S.V/.3d at376; Prytash.,3 S.W.3d at 531, 6. The Court should deny Applicant's requested relief.

Respectfully Submitted, PAUL JOHNSON Criminal District Attorney CATHERINE LUFT Assistant Criminal District Attorney Chief, Appe llate Division

No,240 1450 East McKinney Street, Suite 3 100 Denton, Texas 76209 (e40) 34e-2600 Denton, Texas 76209 (e40) 34e-2730 I ara.toml i [email protected]

CATE OF COMPLIANCE The State certifies that the State's Memorandum and Proposed Findings of Fact and Conclusions of Law in the instant cause contained a word count of 993, said count being generated by the computer program Microsoft Word that was used to prepare the document

CERTIFICATE OF SERVICE I hereby certif, that on the 29th day of December 2014, a true and conect copy of the State's Memorandum and Proposed Findings of Fact and Conclusions of Law was mailed, postage prepaid, to Applicant's Attorney, Fred Marsh, l0l South Woodrow Lane, Denton, Texas 7 5

APPEND E lEx parte Derosie{, No. 02'15-00100-CR, 2015 Tex. App. LEXIS 11155, at *5 (Tex. App.-Fort Worth Oct. 29,2015, pet. filed)l Ex parte Derosier Courl of Appeals of Tcx¿u, Second District, Forl Worth October 29,2Q15, Delivered¡ October 29,2015' Opinitln Filed NO. 02-15-00100-cR Reporter 2015 Tex. App. LEXIS ll155 EX PARTE ANDRE DEROSIER Appellant, Andre Derosicr, appeals lrom the hial courf s order denying him relief on hìs applicatiolr Notice: PLEASE CONSUUI THE TEXAS for writ of habcas corpus. [n one point, Derosier RULES OF APPELLATB PROCEDURE FOR arguen that be¡ause the trial court lacked CITANON OF UNPUBLISHED OPINIONS. subject-matterjurisdiction ovsr the pìea he entercd rcgar.ding tlre unclerlying offense that scrves as the Prior llistory: ,['Ë1] FROM THE 367TH basis for his rcquested relief, thc trial court abused DTSTRICT COURT OF DENTON .COLINTÏ. its discrËtion by denying his application. tile will TRIAI" COURT NO. F-2002-O33GE. TRIAL r.cverse and remand for further proceedings consisfent with this opinion. cOI-]Rr JUDGE: HoN. MARGARET BARNES. \ tt \

II..B¡.cxcnotND r' Counsel: FOR APPELLANT:'BRBD MARSH' EDWARD NOLIER; MARSH & PAINE, P'C., Thc Statc indisted Derosier on March 7,2002,for.

DENTON, TBXAS. six cowrts of indeconcy with ,a child by cont¡ct' , l, ' ; On the second day of his jury tríal, $ovember 13' FOR STATE: PAUL JOHNSON' CRIMINAL 2W\ Derosier entere<l into a plea agreement with DISTRICT AITORNEY; CATTIBRINE LI'JFT; ttre St¡rte wherein [*21 he pleadcd no contest to CHIEF, APPELLATE DIVISION¡ /LARA the misdemcanor offense of tôrror:istic threaP in TOMLIN, MA|THEW SHOVLIN, ANTIIOI'IY exchange for the Staûe dismissing the indecency PAUL, ASST. CRIMINAL DIS,TRICT charges. Pursuant to the plea bargain, Derosier ATTORNEYS, FOR DENTON COUNTT reccivcd one day in jai.l with one day's credit.

DENTON¡ TEXAS. Thus, Derosier dicl ¡rot serve any additional timc iil jail nor any type of community superviision.

Judges: PANEL: LIVINGSTON, C,J.; MBIER Derosier claims, hoWevcr, that hs súffer's the and SUDDERTH, JJ. collatsl¿l consequcnces from this rnisdemcanor conviction of being unable to procure gaintul Opinion by: BILL.MEIER cmployment. SeeTatunv. State,846 S.W.2d 324, 327 (Tcx. Crim. App. 1993) ("il1f a misdemeunor Opinion judgmcnt is void, and its existence may have det¡imentnl collaleral consequences in some future MEMORANDTjM OPINIONI proceeding, it mây bc collaterally a[lackcd, whether or not a ternt of probation wts [. INtRonuc'r¡o,.* successfully servecl out."). | ó'e¡ Tcx, 1ì. App, l>, 41,4.

2 One of the tritl court's finclin¡1s rcad¡ thal thc plcu agrecment rcachcd by Dcrosicr ttnd thc Stalc "apperrn lo lttvc originally bce.n for rhc offense oI'ussault.' ir¡td thlt offçnsc wa¡ì cmsscd out ¡nd'tcrroristic thtr:tl' rvus addctl." Ptrge 2 of 6 2015 Tex. App. LEXIS lll55, *3 Accorcling to thc trial court's fìnclings ol'lacts in temoristic threat, ancl lltus his plcu-bargained-1'<rr l.his hatreas proceeding, prior to his plea, the (rial judgrnerrt is void ancl thc trial cour:|. shoulcl have court properly adrnonished Derosier concer:ning granted lris application, Thc Statc rloes not clisputc his rights antl thc conset¡rrenccs of' his plca, that the trial court lackcd subject-mattcr Derosier and his attor.ttey signed the plea jurisdiol"ion over the nlisdemeanor charge tlrat agreement along with clther paperwork, including Dcrosier pleadcd no confest to.3 Insteacl, the State lt3l a waiver of his right to a jury ¿rnd iltc asserts numerous cstoppel theories as to why the tourt's Adrnonitjorr of ,Statutor:y and trinl courJ ctid not abuse its discretion by derrying Constitutional R.ights ancJ Def'onclant's Derosier' s application.

Acknowlcdgment." Derosicr clid not object to thc trial courtrs jruisdiction prior to entering his plea. A, Standard of Review and Jurisdicfion Tþelvc years aftcr ent,ering his plca, Derosier We revisw a trial courl's denial of tlts relief ñled in the trial court this original application for rcquestcd in an apptication f'.br a writ of habeas writ of habeas corpus, al.leging that the trial court corpus [t5] under an abuse of discrstion standard. lacked subject-matter jurisdiction ovcr the See Kniatt u, Stale,206 S.\ry,3d 657, 664 (Tex. misdemcanor oflense of terroristic threal The Crim. AppJ, cert, dcnied,549 U.S.. 1052,ln S, trinì court:denied rolief. CL 667, t66 L. Frl. 2d 514 (2006)i,Ex parte Mello, 355 S.\t/.3d 827, 832,(Iex. App:-Fof: In tho Fial cou¡t's conclusions of law'rclating to tilorth 2011, pet. refd); Ex porte Karlson,282 i[s denial, the uiaì court concluded that cven S;V/.3ô ,118, ln (tex. App.-Fort Woith 20(Þ, though the plea-bargained judgment was "void," pets. reFd): This meÐns that we view thc rccord in Dcroíisr was nót entitlcd to collaterally attack the the light most f,avorable to the tial court's r,uling judgmont iSicause'he had "gnjoyed fho benefits of and afford grcat def,cr-ence to its findings and an ágrec.d judgment prescrìbing a too-leirisnt conclusions, espècially when they involve punishment.'In gúþporr of its dccision, the trial cletonninations of credibility and demeanor. M.ello, courf. cited fo numcrous Texas Court of Criminal 355 Sj\ry.3d at 832.'A ùial court, however,'has no Appeals decisionn that the trial court interpretcd discrotio¡i in determining. what 'the law is <¡r as standing for the proposition that '/therc n¡e applying tlre law tô the facts, /n rc HÍnterlong, instancos where judgments that arc voicl mEy not 109 S.W.3d 61.1, 621 (Tox. App.-Fort Worth be attacked through a ¡,rit." Uttimatel.y, the lrial 2003, orig. proceeding [mand, denicd]) (op. on court cpncluded,that Derosier wa^s "cstopped fror¡r reh'g). ggmplaining about the ¡rlea agreement that he agr.eed tcl, anrl received the ¡*4¡ bencfit of the tt is axioi'natic that subject+nattcr jurisdicfion cannot be confer,rerl by ngreemei:t of the paflies; bargain from." This appeal fbllowed. jurisdietion must be vested in a court by constitution or ståtute. See Stale v. Robet'ts, 94Q II[. Dscusslon S.W.2cl 655, 657 (Tex. Crim. App. 1996) In one point, Derosier argues that lte trial court ("[S]ubject matter jurisdiction cannot be conferred abused its discretion by denying his application by ngreement of the pârties; jurisdiction must bc for writ of habeas corpus because the trial court vested Ín a court by constitution clr sfatute."), laokccl subjc<;t-rnaltcr juriscliction ovcÍ the overruled on other groundt by State v. Medrnno, misdemcanor charge he pleaclcd no contest to, 67 S.W.3d 892,894 (Tcx. Crim. App. 2002). \ Sce Puent¿ v, Stile,7l S.W3d 340, 343 (-l'cx. C'.rirn. App. 2002) ("4 disnict court hus juri.sdìcl.ion ovcr fclony offcnses, lt docs rot hnvc originnl jurisdiclion ovcr miscle.rrrc¡utor clrnryes. cxcept thosc involving officinl rniscronduct.f, (trxrtnoles ornittcd) Thc Slatc, lhc triirl r:ourt, i¡nd f)crosier ull agrrc thtt thc trinl court lucked sulrject-nrntlcr jurisdiction over tbe plcn-burgaincd-for.iudgntcnl.

Pagc 3 of 6 2015 Tcx. App. LEXIS I1155, +5

B, Rhodes, Murrtq, aud lllegal Sentences ll9 S.W.3d at 806 (second emphasis addecl)' Moreover, tlte Rlndes court specificnlly statecl In support olliLs ar:gunenI Dcrosicr shoulcl be th¿ì|. that the only excepl"ions to the cstoppcl or'¿invited estoppecl f.rom cotrlplaining abottt his orrer" doctrinc thal. applicd to Rhodes's judgment plea-bargained judgrncnl, tùc Stalc, like the trial were "cha,l lenges to the s ubject-matter iurisdiction court did in it:s conclusions of law, rclics in part olr of the courf rcndering the judgment." Rlwdes,240 the court otcrimina,l appeals's decisions tn Rhodes S.V/.3d at 891, In surnmary, Rhodes did nol v. State,240 S.1vV.3cl 882 (Tex. Cri¡n. App. 2007) i (rial cour[' s subject-matter j urisdiction, nv oì ve the rntl Mu,rray v. Slatc,302 S,V/'3d 874 (Tex. Cri¡n. and there is notlring in Rhodes fo suggest that App. 2009). esloppcl-like doctdnc.s apply when a coutt dotx court faced the qucstion of whether no[ have subject-rnatter jurisdiction oYcr ¿r ln Rhod.es, the bargained -for j ud gmen L a defendant who cntered a plea agreement involving [t6] urultiple charges and corresponding Mu:rray also involved on tllegatly lcnisnt sentences could later argue that his plea was void. sentence," but unlike the defendant it Rhodcs, because undcr the code of crimin¿l procedurc, the Munay was not barrËd from challenging the ttial court was not authorìzsd to ilssqss his illegal sentence because hc had procedurally senûences to ri¡n concurrenily. 240 S.W.3d at 890- perfecûed his challenge to the judgmeht wheit he In shorg Rhode's "tpccived a judgment that was "assignetl a reason" for withdrawing his pleÍl prioi illegally lcnisttt by having his sentenco run to the entry of judgment. Murray,302,'S.W3d at concurrently instead of, consecutively." /d The 883. In coming to its conclusion that'the Süato's Rhodes court held that Rhodes \ilas qstopped from cstoppel èlaims fai ted:,' tho Murrøy court'assumed, attackin$ this judgmont through a writ of haboa^s 'wi.thout deciding, that the State [was] not bar¡ed 'colpl¡s' bccause "he agreed to ths concurrtnt by a subjcct[-]matÉer jurisdiction dclbct." Id. al: lsentÞncing provisi.on, then through his own 882. Like in itftod¿,r', there is nothing [+El in oonduct [of not directly appealing the decision] he Murrøy to suggest that cstoppel'like doct¡ines helped procure and.benetit,from thc i¡.lle9ality-" Id. åpply whcn a court lecks 'subject-matter But Rhodes is inaþplicabte 'to the facts of this j'uri sd i cti on over thc bnrgainul-foi jud gmon t' c88e.

Accordingl.y, the lrial court and tlte State's reliance lì.n Rþdes, there was no question that the lrial upon Rhodes rnd Murray is misplaced' This case court possessed subject-mattor jttrisdiction over does not involve an illegal sentencc; it involves a tho juclgmenl" resulting lionr Rh<¡des's plea. The jurlgrnent that ís void because the Fial court trial court's failure was thnt il had entered an 'See lacked jurisdiction to enter judgment. Nix v. "illegally lenient scntcnce." /d. at 890. An illegal state,ós s.Tv,3d 664,'667 (Tex, Crim. App. 2001) sentencc is a sentcnce that is "ouüside the ("Th" void judgmont exception' recognizes that maximum or mi¡r.inrunr rilìge uf pun:ishmônt - - -, there are som'e rare situations in which a triaì unauthorizecl by 'law[,] ancl the.rcfore ilìegal." court's judgmcnt is accortled no respcct due to a Mìzetl'v. state, 119 s.w.3d 804, 806 (Tcx' Crim. complctc lack of power to render the judgment in App. 2003). Illegal se¡rtences are curable defects question."); see also ln re L-¿ona.rd, 402 S.W.3d anrJ do not involve a court's jurisdiction- Rhndes, 421, 423 (Tcx. App.-Fott tJ/orth 20'13, orig.

240 S.W.3d at S88, Indeccl, t¡s the sourt of' procceding Imand. conditionally granted]) crimin¿rl appeals ha.s statccl, [+71 "There lras never ("Estoppel, however, cannot appìy if the trial bcen anything in Tcxas law thal. prevcnted azy court. hâd no subject[-.lmat,tel jucisdiction.). court with jurisdictíon over a critninnl case flronr ncrticirrg and con'ectirrg an illcgal serttcncc-" Miz'ell, C. E¡ pørle Sledge Pr,rgc 4 of 6 2015 Tcx. App. LEXIS I I l-55, +8

In its conclusions of law, the aiul oourt ¿ilso vindication in an original post-conviotion concludcd that the "Court oI Crirninal Appeals has appfication for writ cll'habeas corplls. We do held that there are instanccs whers juclgnrents that, not mean herc t() say otherwise. arc v<licl rn¿¡y not be tttacked through a writ." Er pørte Sledge,3gl S.W3ct 104, 1.07-08 (Iex. Crim. /r/. (f'ootnotes omitted). Thus, the trial ceurt's App. 2013). The State rclies on a similar premise rcìiancc, ancl the Slale's reliance now, on Sledgeis in ils bricfing to this court. But SIedge is also no1 rnisplaoed because it is not tlisputed in this case applicable to the facts of this case. In ^Sledge, tlre that Dcrosier brought his subject-matter court of crirninal appeals hcld that a writ jurisclictional claim in his origina.l post-convicf.ion applicanl's clairn that the trial coutt's [*9] order applical-ion l'ot writ of habcas cor?us. revoking his deferred adjudication comrnunity supcrvision was void for lack of subject-malter D. Ex parte Heilann jurisdiction .wa.s not cognizable on successive habea¡ cor¡us review. Id. Tbe Sledg¿ court One of the cases heavily rtlied upon by tho Statc roasoned,that because tle claim did not:fit within is Exparte Heilman.4-56 S'W.3d 159 (tex. Crim. any of fhe statuþry ex.ceptions to the prohibition App. 2015). In Heilnun, fhe court of criminql agains[ suocgssivE writs and because the applicant appeals held thut it would no longer recognize a had,not brought his..iurisdictional claim in his distinction between limitations defenses that a¡e original pnst-conviction application for wríf of "based in factlt vorsus those that a-nc "purc law.' haÞeas cglpus, thc coqrf of criminal appçals itself Id^ at l,6l-62, Prior to Heilman, Texas jurisprudence trcated limitation defenses based on was statutorily barred ffom rcviewf¡¡g the claim. td- , facfs as Martn catogory-three rights and limilation defenses based on pure law as M¿rin catcgory'one The.Slødge. court, howeve¡ discussed at ,length ldlsee aLso Marinv. Støte,8-51 S.try.2d d,ghts. See that turisdictionaì olaims are cognizablc in 275;ZllE ([cx, Crim. App. 7993\, overtuled on 'h¿beas postjconvicfion corpus procealing s," ld. other grounds by Cain t S,W.%1262, Stnten Ð47 al I08, Specifically to claims regardi¡g & 264 (Iex. Crim. App. t997). Th" apprcciable convicting court's jurisdiction, the Sledge court differsnce is th¿t Marin catcgory-three rights are stated, [*11] zubject fo forfeiture, and Marin category-one righüs are "absolute rcquirencnts." It is, of course, axiomatic in our case law that Marin, 851 S.V[.2d at 279. One suctt Marín review of jurisdictional claims are cognizablc category-one right is subject-matter juri'ßdiction. in post-con vìcti on habeas corpus proceedin gs. /d. Until Heilman,limitation defenses based on Moreover, we have rccognizrd them to be pure law were treatecl as juri.stlicfiori¿rl issues. 456 cognizablc without regard to ordinary notions S.W.3d a¡. 162. of procedural detault+ssentially bepause ,it is simply not optional with the parlje.s to âgree Thc State asks this court to :interprct Heilman ¿us to confer subjcct[-]mafter jurìsdiotion on a standing for the propos;ition l.hat "protecting convicting courC whe.re lhat juri.sdicl"ion is goocl-t'aith, ârm's length plea agreements" trumps lacking. Therefore, [#1.0] unlcss and until stlch subject-mattcr.jurisdiction. But Heìlnnn docs not tinre as the l,egislature might say otherwise, in suggest any(hing ol'thc sot'l,, Heilmør¡ stands lbr exercise of its colrstitu[ional autfrority to tlre proposition that there is no e..r po.ri, focto regulatc posl-conviction wril. procedure, a viol¡rtion hy trcal.ing all limilation dcf'enscs us rncritoriclus cl¡lim o[ lruly julisclictional "Mnrin category-three f'orl'citable rights." Id. at climension will "always" be subjcct to I 69.

Pagc 5 of 6 2015 Tcx, App. LEXIS I I l-55, { I I

Heilmcmrictually works rìÉt¡Iinsf thc Stale's position thal l"his oourt [*13] "is bountl by the prcccclent of in this case. H.eilntcn explicitly stotes that "estoppel the Texas Cou¡:t of Cri¡ninal Appeals ancl has no cloes not apply when [n] courl lack[s] jurisdiclion'" author:ity to disregarcl or overrule" il), affd,2l8 Id. at 16?. Further, Heilnrun cxplains that a S.V/.3d 85 (Tex. Crim, ApP. 2007). "limitations clefcnse stancling alone is merely a Arguments proccduraì 'act of gracc' hy the lcgislaturc that R The State's Renraining can be lbrfeitecl," hut when a "Lria,|l court lack[s] In the remainder of its briefìng, the State argues jurisdiction . . . no conviction [is] possible-" Id. al that DerosieÍ was not harmecl by his plea, or that 168. We conclude th'¿t Heilman rlnes not support hc otherwíse waived his complaint about the trial the trial court's deniat of Derosier's application, court's judgment, and thus this courl should nor <loes it support the Sfate's posiúon that atTinn the trial court's denial of his application.

Derosier is estopped from brjnging his application. But subject-matter jurisdiction is not a question of F12I harm; rather, it is a quastion regarding a trial court's nbiliry [o act. Roherts,940 S'V/,2d at 657.

E, Precedent It is not a questÍon o[ thc parlics' conduct thaf can upon a court an authority that does not The S¡aæ also rclies on a myriad of cases, confcr instcacl, a lock of subject-matær jurisdicti.on including fragments frorn concrlrrencos and exist; conccrns a court's cornplete lack of power to dlsssnts f¡o¡n court clf criminal appoals's opinions render the judgment in question. J¿¿ 65 as welt as opinions fmm c¡lhcr state coufs, and ^/¿r, S.Vf.3d at668 ("4 void judgmentis a'nullity' and asks this court to read the tea leaves rcgardíng can be attackcd at any tinro."). As ttre court of how the Texas Cou¡t of Crirninal Appeals will, in. cniminaì appeals statcd in Sledge, "a meritorious lhe.future, addrcss the issue of wbcn an applicant claim of tdy jurisdictional dimcnsion will beneñts trom an agreed-to judgmenf. but latcr 'always' be subject to vindication in an oríginal' challenge,r the convicting court's subject-matter post-conviction application for writ of habeas jurÍsdiction in a writ of habeas corpus. See Hall v. corpus." Sledge, 391 S,W.3d at 108 (citing Ex state,225 S.lV.3d 524,537-38 (Tex. Crim. App. parle Dav i s, 947 S. W.2 d 21 6, 223'24 (lìex. Crim.

2W7) (Keller, PJ., dìssentìng) (discussing the App. 1996)). This is the very type of claim that rloctrine of 'teneficial acquiescence"); see also Derosisr has brouglrt, and the St¿tc and trial court People v. Vera, 122 Ctl. App, 4th 970, 982-83' l8 both agree that tlre lrial courl lacked jurisdiction Cal. Rptr. 3d 896 QOO4) (holding defendant who to cnter judgment predicÂted on a charge of plcaderl no contcst to felony battcry cstoppcd [114] teroristic threat. from challengÍng trial court's authority to strike five-year: cnhanccments wherc courf struck the IV. Cc¡ncr.uston enl¡anccments pursuant to pleâ agrcement). In short, Lhe State ¿rsks this court to prcernplively V/e hol.d that the trial cÒurt. abused its cliscrction overrulc the Tcxas Cor¡rt of Crintinal Appeals's by denying Derc¡sier's application for writ c¡f have longstanding holding that "it is simply not optional hal¡eru corpus because thc trial court di<l not with the parties to agree to confer subject-nratter subject-matter jurisdiction over the agreed'to juris<liction on ¿¡ convic[ing oourt wherc that charge ancl thcrelbre thc judgment is void- juris<liction is lackÍng. Slwlge,39l S.VV.3d at 108. Accorctingly, we sustain Dcrosier's sole Po¡nt, we 'Wc decline the State's invitation to usurp the role reverse thc trial court's -iudgment denying of lhe Texas Court ol Criltrinal Appeals. See Derclsicr's rlpplication, and wc remanct this case Sierru v. Slule, 157 S.W..3d 52, 60 (Tex. back to that court lbr procceclings consistent with App.-Ftrrl Wc¡¡th 2004) (o¡t. on reh'g) (stating [his opirtiort.

Pnge 6 of 6 2015 Tex. App, I,EXIS I I l5-5, 'È14

/s/ Bill Meier DO NOT PUBLISH BILL MEIER Tex. R. App. P. 47.2(h) JUSTICE PANEL: LMNCSTON, C.JI; MEIER ancl DELIVERED: Octobsr 29,2015 ST]DDERTH, JJ.