COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00100-CR
EX PARTE ANDRE DEROSIER
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2002-0330-E
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant, Andre Derosier, appeals from the trial court’s order denying him
relief on his application for writ of habeas corpus. In one point, Derosier argues
that because the trial court lacked subject-matter jurisdiction over the plea he
entered regarding the underlying offense that serves as the basis for his
requested relief, the trial court abused its discretion by denying his application.
We will reverse and remand for further proceedings consistent with this opinion.
1
See Tex. R. App. P. 47.4.
II. BACKGROUND
The State indicted Derosier on March 7, 2002, for six counts of indecency
with a child by contact. On the second day of his jury trial, November 13, 2002,
Derosier entered into a plea agreement with the State wherein he pleaded no
contest to the misdemeanor offense of terroristic threat2 in exchange for the State
dismissing the indecency charges. Pursuant to the plea bargain, Derosier
received one day in jail with one day’s credit. Thus, Derosier did not serve any
additional time in jail nor any type of community supervision. Derosier claims,
however, that he suffers the collateral consequences from this misdemeanor
conviction of being unable to procure gainful employment. See Tatum v. State,
846 S.W.2d 324, 327 (Tex. Crim. App. 1993) (“[I]f a misdemeanor judgment is
void, and its existence may have detrimental collateral consequences in some
future proceeding, it may be collaterally attacked, whether or not a term of
probation was successfully served out.”).
According to the trial court’s findings of facts in this habeas proceeding,
prior to his plea, the trial court properly admonished Derosier concerning his
rights and the consequences of his plea. Derosier and his attorney signed the
plea agreement along with other paperwork, including a waiver of his right to a
jury and the “Court’s Admonition of Statutory and Constitutional Rights and
2
One of the trial court’s findings reads that the plea agreement reached by
Derosier and the State “appears to have originally been for the offense of
‘assault,’ and that offense was crossed out and ‘terroristic threat’ was added.”
2
Defendant’s Acknowledgment.” Derosier did not object to the trial court’s
jurisdiction prior to entering his plea. Twelve years after entering his plea,
Derosier filed in the trial court this original application for writ of habeas corpus,
alleging that the trial court lacked subject-matter jurisdiction over the
misdemeanor offense of terroristic threat. The trial court denied relief.
In the trial court’s conclusions of law relating to its denial, the trial court
concluded that even though the plea-bargained judgment was “void,” Derosier
was not entitled to collaterally attack the judgment because he had “enjoyed the
benefits of an agreed judgment prescribing a too-lenient punishment.” In support
of its decision, the trial court cited to numerous Texas Court of Criminal Appeals
decisions that the trial court interpreted as standing for the proposition that “there
are instances where judgments that are void may not be attacked through a writ.”
Ultimately, the trial court concluded that Derosier was “estopped from
complaining about the plea agreement that he agreed to, and received the
benefit of the bargain from.” This appeal followed.
III. DISCUSSION
In one point, Derosier argues that the trial court abused its discretion by
denying his application for writ of habeas corpus because the trial court lacked
subject-matter jurisdiction over the misdemeanor charge he pleaded no contest
to, terroristic threat, and thus his plea-bargained-for judgment is void and the trial
court should have granted his application. The State does not dispute that the
trial court lacked subject-matter jurisdiction over the misdemeanor charge that
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Derosier pleaded no contest to.3 Instead, the State asserts numerous estoppel
theories as to why the trial court did not abuse its discretion by denying
Derosier’s application.
A. Standard of Review and Jurisdiction
We review a trial court’s denial of the relief requested in an application for
a writ of habeas corpus under an abuse of discretion standard. See Kniatt v.
State, 206 S.W.3d 657, 664 (Tex. Crim. App.), cert. denied, 549 U.S. 1052
(2006); Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth 2011, pet.
ref’d); Ex parte Karlson, 282 S.W.3d 118, 127 (Tex. App.—Fort Worth 2009,
pets. ref’d). This means that we view the record in the light most favorable to the
trial court’s ruling and afford great deference to its findings and conclusions,
especially when they involve determinations of credibility and demeanor. Mello,
355 S.W.3d at 832. A trial court, however, has no discretion in determining what
the law is or applying the law to the facts. In re Hinterlong, 109 S.W.3d 611, 621
(Tex. App.—Fort Worth 2003, orig. proceeding [mand. denied]) (op. on reh’g).
It is axiomatic that subject-matter jurisdiction cannot be conferred by
agreement of the parties; jurisdiction must be vested in a court by constitution or
statute. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996)
3
See Puente v. State, 71 S.W.3d 340, 343 (Tex. Crim. App. 2002) (“A
district court has jurisdiction over felony offenses. It does not have original
jurisdiction over misdemeanor charges, except those involving official
misconduct.”). (footnotes omitted) The State, the trial court, and Derosier all
agree that the trial court lacked subject-matter jurisdiction over the plea-
bargained-for judgment.
4
(“[S]ubject matter jurisdiction cannot be conferred by agreement of the parties;
jurisdiction must be vested in a court by constitution or statute.”), overruled on
other grounds by State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002).
B. Rhodes, Murray, and Illegal Sentences
In support of its argument that Derosier should be estopped from
complaining about his plea-bargained judgment, the State, like the trial court did
in its conclusions of law, relies in part on the court of criminal appeals’s decisions
in Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App. 2007) and Murray v. State,
302 S.W.3d 874 (Tex. Crim. App. 2009).
In Rhodes, the court faced the question of whether a defendant who
entered a plea agreement involving multiple charges and corresponding
sentences could later argue that his plea was void because under the code of
criminal procedure, the trial court was not authorized to assess his sentences to
run concurrently. 240 S.W.3d at 890. In short, Rhodes “received a judgment
that was illegally lenient by having his sentence run concurrently instead of
consecutively.” Id. The Rhodes court held that Rhodes was estopped from
attacking this judgment through a writ of habeas corpus because “he agreed to
the concurrent sentencing provision, then through his own conduct [of not directly
appealing the decision] he helped procure and benefit from the illegality.” Id. But
Rhodes is inapplicable to the facts of this case.
In Rhodes, there was no question that the trial court possessed subject-
matter jurisdiction over the judgment resulting from Rhodes’s plea. The trial
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court’s failure was that it had entered an “illegally lenient sentence.” Id. at 890.
An illegal sentence is a sentence that is “outside the maximum or minimum range
of punishment . . ., unauthorized by law[,] and therefore illegal.” Mizell v. State,
119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Illegal sentences are curable
defects and do not involve a court’s jurisdiction. Rhodes, 240 S.W.3d at 888.
Indeed, as the court of criminal appeals has stated, “There has never been
anything in Texas law that prevented any court with jurisdiction over a criminal
case from noticing and correcting an illegal sentence.” Mizell, 119 S.W.3d at 806
(second emphasis added). Moreover, the Rhodes court specifically stated that
the only exceptions to the estoppel or “invited error” doctrine that applied to
Rhodes’s judgment were “challenges to the subject-matter jurisdiction of the
court rendering the judgment.” Rhodes, 240 S.W.3d at 891. In summary,
Rhodes did not involve the trial court’s subject-matter jurisdiction, and there is
nothing in Rhodes to suggest that estoppel-like doctrines apply when a court
does not have subject-matter jurisdiction over a bargained-for judgment.
Murray also involved an “illegally lenient sentence,” but unlike the
defendant in Rhodes, Murray was not barred from challenging the illegal
sentence because he had procedurally perfected his challenge to the judgment
when he “assigned a reason” for withdrawing his plea prior to the entry of
judgment. Murray, 302 S.W.3d at 883. In coming to its conclusion that the
State’s estoppel claims failed, the Murray court assumed, “without deciding, that
the State [was] not barred by a subject[-]matter jurisdiction defect.” Id. at 882.
6
Like in Rhodes, there is nothing in Murray to suggest that estoppel-like doctrines
apply when a court lacks subject-matter jurisdiction over the bargained-for
judgment.
Accordingly, the trial court and the State’s reliance upon Rhodes and
Murray is misplaced. This case does not involve an illegal sentence; it involves a
judgment that is void because the trial court lacked jurisdiction to enter judgment.
See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001) (“The void
judgment exception recognizes that there are some rare situations in which a trial
court’s judgment is accorded no respect due to a complete lack of power to
render the judgment in question.”); see also In re Leonard, 402 S.W.3d 421, 423
(Tex. App.—Fort Worth 2013, orig. proceeding [mand. conditionally granted])
(“Estoppel, however, cannot apply if the trial court had no subject[-]matter
jurisdiction.”).
C. Ex parte Sledge
In its conclusions of law, the trial court also concluded that the “Court of
Criminal Appeals has held that there are instances where judgments that are
void may not be attacked through a writ.” Ex parte Sledge, 391 S.W.3d 104,
107–08 (Tex. Crim. App. 2013). The State relies on a similar premise in its
briefing to this court. But Sledge is also not applicable to the facts of this case.
In Sledge, the court of criminal appeals held that a writ applicant’s claim that the
trial court’s order revoking his deferred adjudication community supervision was
void for lack of subject-matter jurisdiction was not cognizable on successive
7
habeas corpus review. Id. The Sledge court reasoned that because the claim
did not fit within any of the statutory exceptions to the prohibition against
successive writs and because the applicant had not brought his jurisdictional
claim in his original post-conviction application for writ of habeas corpus, the
court of criminal appeals itself was statutorily barred from reviewing the claim. Id.
The Sledge court, however, discussed at length that “jurisdictional claims
are cognizable in post-conviction habeas corpus proceedings.” Id. at 108.
Specifically to claims regarding a convicting court’s jurisdiction, the Sledge court
stated,
It is, of course, axiomatic in our case law that review of
jurisdictional claims are cognizable in post-conviction habeas
corpus proceedings. Moreover, we have recognized them to be
cognizable without regard to ordinary notions of procedural
default—essentially because it is simply not optional with the
parties to agree to confer subject[-]matter jurisdiction on a
convicting court where that jurisdiction is lacking. Therefore, unless
and until such time as the Legislature might say otherwise, in
exercise of its constitutional authority to regulate post-conviction
writ procedure, a meritorious claim of truly jurisdictional dimension
will “always” be subject to vindication in an original post-conviction
application for writ of habeas corpus. We do not mean here to say
otherwise.
Id. (footnotes omitted). Thus, the trial court’s reliance, and the State’s reliance
now, on Sledge is misplaced because it is not disputed in this case that Derosier
brought his subject-matter jurisdictional claim in his original post-conviction
application for writ of habeas corpus.
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D. Ex parte Heilman
One of the cases heavily relied upon by the State is Ex parte Heilman.
456 S.W.3d 159 (Tex. Crim. App. 2015). In Heilman, the court of criminal
appeals held that it would no longer recognize a distinction between limitations
defenses that are “based in facts” versus those that are “pure law.” Id. at 161–
62. Prior to Heilman, Texas jurisprudence treated limitation defenses based on
facts as Marin category-three rights and limitation defenses based on pure law as
Marin category-one rights. See id.; see also Marin v. State, 851 S.W.2d 275, 278
(Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d
262, 264 (Tex. Crim. App. 1997). The appreciable difference is that Marin
category-three rights are subject to forfeiture, and Marin category-one rights are
“absolute requirements.” Marin, 851 S.W.2d at 279. One such Marin category-
one right is subject-matter jurisdiction. Id. Until Heilman, limitation defenses
based on pure law were treated as jurisdictional issues. 456 S.W.3d at 162.
The State asks this court to interpret Heilman as standing for the
proposition that “protecting good-faith, arm’s length plea agreements” trumps
subject-matter jurisdiction. But Heilman does not suggest anything of the sort.
Heilman stands for the proposition that there is no ex post facto violation by
treating all limitation defenses as “Marin category-three forfeitable rights.” Id. at
169.
Heilman actually works against the State’s position in this case. Heilman
explicitly states that “estoppel does not apply when [a] court lack[s] jurisdiction.”
9
Id. at 167. Further, Heilman explains that a “limitations defense standing alone is
merely a procedural ‘act of grace’ by the legislature that can be forfeited,” but
when a “trial court lack[s] jurisdiction . . . no conviction [is] possible.” Id. at 168.
We conclude that Heilman does not support the trial court’s denial of Derosier’s
application, nor does it support the State’s position that Derosier is estopped
from bringing his application.
E. Precedent
The State also relies on a myriad of cases, including fragments from
concurrences and dissents from court of criminal appeals’s opinions as well as
opinions from other state courts, and asks this court to read the tea leaves
regarding how the Texas Court of Criminal Appeals will, in the future, address the
issue of when an applicant benefits from an agreed-to judgment but later
challenges the convicting court’s subject-matter jurisdiction in a writ of habeas
corpus. See Hall v. State, 225 S.W.3d 524, 537–38 (Tex. Crim. App. 2007)
(Keller, P.J., dissenting) (discussing the doctrine of “beneficial acquiescence”);
see also People v. Vera, 122 Cal. App. 4th 970, 982–83 (2004) (holding
defendant who pleaded no contest to felony battery estopped from challenging
trial court’s authority to strike five-year enhancements where court struck the
enhancements pursuant to plea agreement). In short, the State asks this court to
preemptively overrule the Texas Court of Criminal Appeals’s longstanding
holding that “it is simply not optional with the parties to agree to confer subject-
matter jurisdiction on a convicting court where that jurisdiction is lacking. Sledge,
10
391 S.W.3d at 108. We decline the State’s invitation to usurp the role of the
Texas Court of Criminal Appeals. See Sierra v. State, 157 S.W.3d 52, 60 (Tex.
App.—Fort Worth 2004) (op. on reh’g) (stating that this court “is bound by the
precedent of the Texas Court of Criminal Appeals and has no authority to
disregard or overrule” it), aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007).
F. The State’s Remaining Arguments
In the remainder of its briefing, the State argues that Derosier was not
harmed by his plea, or that he otherwise waived his complaint about the trial
court’s judgment, and thus this court should affirm the trial court’s denial of his
application. But subject-matter jurisdiction is not a question of harm; rather, it is
a question regarding a trial court’s ability to act. Roberts, 940 S.W.2d at 657. It
is not a question of the parties’ conduct that can confer upon a court an authority
that does not exist; instead, a lack of subject-matter jurisdiction concerns a
court’s complete lack of power to render the judgment in question. See Nix, 65
S.W.3d at 668 (“A void judgment is a ‘nullity’ and can be attacked at any time.”).
As the court of criminal appeals stated in Sledge, “a meritorious claim of truly
jurisdictional dimension will ‘always’ be subject to vindication in an original post-
conviction application for writ of habeas corpus.” Sledge, 391 S.W.3d at 108
(citing Ex parte Davis, 947 S.W.2d 216, 223–24 (Tex. Crim. App. 1996)). This is
the very type of claim that Derosier has brought, and the State and trial court
both agree that the trial court lacked jurisdiction to enter judgment predicated on
a charge of terroristic threat.
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IV. CONCLUSION
We hold that the trial court abused its discretion by denying Derosier’s
application for writ of habeas corpus because the trial court did not have subject-
matter jurisdiction over the agreed-to charge and therefore the judgment is void.
Accordingly, we sustain Derosier’s sole point, we reverse the trial court’s
judgment denying Derosier’s application, and we remand this case back to that
court for proceedings consistent with this opinion.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 29, 2015
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