Derosier, Ex Parte Andre

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
101 South Woodrow
Denton, Texas 76205
APPELLATE COLINSEL

CARY PIEL
100 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;
2 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
819 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
851 S.W.2d275 (Tex. Crim. App. 1993) .......'..... 11

McKínney v. State
207 S.W.3d366 (Tex. Crim. App. 2006) 10,12

Murray v. State
302 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
3 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

1
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

2
 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

3
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).

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 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,

302 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,

5
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.

6
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,

302 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

7
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

8
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.

9
 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).

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.

13
 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
7 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),

2
{,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).

3
 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,
240 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 n@dentoncounty.com

4
 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

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, 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'