PD-1510-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/7/2015 12:00:00 AM
Accepted 12/7/2015 2:40:22 PM
IN THE COURT OF CRIMINAL APPEALS OF TEXAS ABEL ACOSTA
CLERK
CAUSE NO. PD-1510-15
__________________________
EX PARTE ANDRE DEROSIER
_______________________
FROM THE SECOND DISTRICT OF TEXAS AT FT. WORTH
IN CAUSE NUMBER 02-15-00100-CR
AND
TH
FROM THE 367 JUDICIAL DISTRICT COURT
DENTON, TEXAS
IN CAUSE NUMBER F-2002-0330-E
__________________________________
APPELLANT’S RESPONSE TO THE
STATE’S PETITION FOR DISCRETIONARY REVIEW
_________________________________
FRED MARSH
EDWARD NOLTER
Marsh & PAINE, P.C.
101 S. Woodrow
Denton, TX 76205
Tel: (940) 536-377
Fax: (940) 382-4288
FDM@MARSHPAINELAW.COM
December 7, 2015
EJN@MARSHPAINELAW.COM
1 – Appellant’s Response to State’s Petition for Discretionary Review
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS 2
INDEX OF AUTHORITIES 3
STATEMENT REGARDING ORAL ARGUMENT 5
ARGUMENT 6
PRAYER 18
CERTIFICATE OF COMPLIANCE & SERVICE 19
2 – Appellant’s Response to State’s Petition for Discretionary Review
INDEX OF AUTHORITIES
CASE PAGE
Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995) 16
DeDonato v. State, 819 S.W.2d 164 (Tex.Crim.App.1991) 14
Ex parte Armstrong, 110 Tex.Cr.R. 362, 8 S.W.2d 674 (1928) 7
Ex parte Derosier, No. 02-15-00100-CR, 2015 Tex. App. LEXIS 11155 passim
(Tex. App.—Ft. Worth Oct. 29, 2015, pet. filed))
Ex parte Moss, 446 S.W.3d 786 (Tex. Crim. App. 2014) 11
Ex Parte Sledge, 391 S.W.3d 104 (2013) 14
Ex parte Williams, 65 S.W.3d 656 (Tex.Crim.App.2001) 9
Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969 7
(1915)
Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Crim.App. 1980) passim
Hall v. State, 225 S.W.3d 524, 538 (Tex. Crim.App.2007) 17
Marin v. State, 851 SW2d 275 (Tex.Crim.App.1993) 12
McKinney v. State, 207 SW3d 366 (Tex.Crim.App.2006) 17
Murray v. State, 302 S.W.3d 874 (Tex.Crim.App. 2009) 10
Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App. 2007) passim
State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App.1996) 8
Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990) 15
3 – Appellant’s Response to State’s Petition for Discretionary Review
Teal v. State, 230 S.W.3d 172, 181 (Tex.Crim.App.2007) 15
United States v. Cotton, 535 U. S. 625 (2002) 8
CONSTITUTIONS AND STATUTES PAGE
Tex. Const. Art. 1§ 10 16
Tex. Const. Art. 5 § 8
Tex. Code Crim. Proc. art. 4.05 17
Tex.Code Crim. Proc. art. 21.26 7
TEX. PENAL CODE ANN. § 22.07 16
4 – Appellant’s Response to State’s Petition for Discretionary Review
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
CAUSE NO. PD-1510-15
__________________________
EX PARTE ANDRE DEROSIER
_______________________
FROM THE SECOND DISTRICT OF TEXAS AT FT. WORTH
IN CAUSE NUMBER 02-15-00100-CR
AND
TH
FROM THE 367 JUDICIAL DISTRICT COURT
DENTON, TEXAS
IN CAUSE NUMBER F-2002-0330-E
__________________________________
APPELLANT’S RESPONSE TO THE
STATE’S PETITION FOR DISCRETIONARY REVIEW
_________________________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now Appellant, by and through his attorney of record Mr. Fred Marsh,
and respectfully urges this Court to deny the State’s petition for discretionary review of
the above named cause.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary because this Court’s precedent regarding subject-
matter jurisdiction is firmly established and will not aid the Court in its decision to deny
the State’s petition.
5 – Appellant’s Response to State’s Petition for Discretionary Review
ARGUMENT
The State has presented one issue for this Court’s review. The very wording of
the issue shows that State lacks a fundamental understanding of subject-matter
jurisdiction and its importance to any court’s authority to act lawfully. The Second
Court of Appeals correctly interpreted this Court’s precedent based upon the facts of
the case and the State’s petition should be refused.
The State’s question is:
“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?”
(PDR 2)
The Texas Constitution, statutes, and this Court’s precedent affirmatively decide
this issue against the State. However, before Appellant begins his legal analysis on this
issue, this Court should be cognizant of two (2) important facts. First, the State
admitted during its opening argument to the trial court that “[a]s far as subject-matter
jurisdiction, this Court did not have subject-matter jurisdiction because a terroristic
threat is not a lesser included, but Appellant is estopped from making those claims
now.” (2 RR 12). Second, the trial court found it did not have subject-matter
jurisdiction but denied Appellant’s writ because it found Appellant’s sentence was an
illegally lenient sentence and Appellant was estopped from challenging it. (CR 91-94).
6 – Appellant’s Response to State’s Petition for Discretionary Review
The Court of Appeals noted this distinction in its opinion, “* * * The State, the trial
court, and Derosier all agree that the trial court lacked subject-matter jurisdiction.” Ex
parte Derosier, No. 02-15-00100-CR, 2015 Tex. App. LEXIS, at 11155 *4 (Tex.
App.—Ft. Worth Oct. 29, 2015, pet. filed)]).
The law is not as muddied as the State asserts. (PDR 9) In fact, the Court of
Appeals “blind reliance on subject-matter jurisdiction” was correct as to the law and as
the facts of this case point out. (PDR 11). “* * * Jurisdiction may be concisely stated to
be the right to adjudicate concerning the subject matter in a given case. Unless the
power or authority of a court to perform a contemplated act can be found in the
Constitution or laws enacted thereunder, it is without jurisdiction and it acts without
validity.” Ex parte Armstrong, 110 Tex.Crim. 362, 8 S.W.2d 674, 676 (App.1928).
Furthermore, due process requires that a criminal action in a state court must be before
a court of competent jurisdiction. Frank v. Mangum, 237 U.S. 309, 326 (1915).
Article 5 § 8 of the Texas Constitution confers power on Texas District Courts.
Article 4.05 of the Texas Code of Criminal Procedure gives District Courts their
jurisdiction. Tex.Code Crim. Proc. art. 4.05 states:
“District courts and criminal district courts shall have original jurisdiction in
criminal cases of the grade of felony, of all misdemeanors involving official
7 – Appellant’s Response to State’s Petition for Discretionary Review
misconduct, and of misdemeanor cases transferred to the district court under Article
4.17 of this code.”
Most importantly, subject-matter jurisdiction cannot be conferred by agreement
of the parties. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Cr.App.1980); State v.
Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App.1996), overruled on other grounds by
State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002); Ex Parte Sledge, 391
S.W.3d 104, 108 fn. 23 (2013)(citation to Garcia); see also United States v. Cotton,
535 U. S. 625, 630 (2002)("[S]ubject-matter jurisdiction, because it involves the court's
power to hear a case, can never be forfeited or waived.") The Court of Appeals
embraced this when it affirmatively held that “[i]t 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.” Derosier at *5 (citations omitted).
The State is challenging the Court of Appeals correct holding because it “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.” (PDR 4). The State provides no supporting law or authority for this
assertion. Furthermore, this is incorrect.
8 – Appellant’s Response to State’s Petition for Discretionary Review
The entire crux of the State’s argument is that Appellant cannot challenge his
conviction because he received an illegal sentence (Rhodes v. State1) or because
Appellant did not object to the entry of judgment as the defendant did in Murray v.
State2 and estopped from challenging his conviction. The problem with the State’s
argument is that this Court has consistently held that challenges to the subject-matter
jurisdiction are immune to any of the various forms of estoppel. Ex parte Williams, 65
S.W.3d 656, 659-60 (Tex.Crim.App.2001) (Keller, P.J. concurring)(“Subject matter
jurisdiction is immune to estoppel considerations, * * *))
The Court of Appeals correctly stated that there was no question in Rhodes that
the trial court had subject-jurisdiction over the offenses. The issue in Rhodes was that
it was an illegal sentence. In Rhodes, all of the offenses were for crimes that the trial
court had subject-matter jurisdiction. In this case, Appellant did not receive or suffer
from an illegal sentence. Appellant suffers from an illegal conviction because the trial
court lacked subject-matter jurisdiction. There is a difference. An illegal sentence
presupposes that the conviction was lawful. In this case, the State knowingly,
voluntarily, and intelligently dismissed the felony counts for which the trial court had
jurisdiction. (CR 34; WHC-Ex. 4). Likewise, the State knowingly, voluntarily, and
intelligently amended the indictment to allege a misdemeanor for which the trial court
1 240 S.W.3d 882 (Tex. Crim. App. 2007)
9 – Appellant’s Response to State’s Petition for Discretionary Review
did not have jurisdiction. (CR 31; WHC-Ex. 3). The State’s attorney is responsible for
the pleadings in a criminal action, not the defendant.
The other crux of the State’s argument is based in part on this Court’s decision in
Murray v. State. Murray was a unanimous decision authored by Presiding Judge
Keller. In Murray, the defendant had agreed to plead to a misdemeanor for which the
trial court lacked subject-matter jurisdiction. After the trial court took the case under
advisement, the defendant retained new counsel who filed a motion to revoke the
defendant’s plea of guilt. Id. The trial court denied defendant’s motion, convicted him
of the misdemeanor offense, and the defendant appealed his conviction. Id. The primary
issue in this case was not whether the State was estopped from asserting a subject-
matter jurisdictional claim but if the defendant could withdraw his guilty plea, with
reason, prior to the trial court rendering a judgment. Id at 883.
The State’s entire theory regarding this is based upon this Court’s statement in
Murray addressing estoppel which states:
“The State advances a number of theories of estoppel that it believes
prevents appellant from challenging the judgement in this case: invited
error, estoppel by judgment, estoppel by contract, promissory estoppel,
and quasi-estoppel. We assume, without deciding, that the State is not
barred by a subject matter jurisdiction claim.” Id. at 882.
2 302 S.W.3d 874 (Tex. Crim. App. 2009)
10 – Appellant’s Response to State’s Petition for Discretionary Review
However, this assumption appears to have been resolved in Murray itself and
this Court’s recent unanimous decision in Ex parte Moss, 446 S.W.3d 786, 788-89
(Tex. Crim. App. 2014).
Prior to this statement in Murray, this unanimous Court addressed the State’s
argument regarding the issue that public policy favors and encourages plea bargaining
in criminal cases with Presiding Judge Keller holding:
“Even if the policy of encouraging plea bargaining were considered, the
State has the ability to achieve the practical result reached in cases like
this without running afoul of the statutory scheme. The State could
obtain an indictment, or a waiver of indictment from the defendant,
for a felony offense that does include the misdemeanor offense the
parties wish to be the subject of a plea-bargained judgment. Or
perhaps the felony prosecutor could obtain the cooperation of a county
attorney or other prosecutor in misdemeanor cases to plead the defendant
to the misdemeanor in question in a court that has misdemeanor
jurisdiction. In either event, the plea could be made in exchange for
dismissal of the charged offense with prejudice. These alternate methods
of handling the plea would avoid the potential double jeopardy problems
associated with convicting someone of an offense that is not in fact a
lesser-included offense of the offense charged.” Id. at 881 (internal
citations omitted, emphasis added).
It appears that this Court answered its own question regarding estoppel and
provided the solution for issues, such as those presented in this case, when the State
and the defendant agree to plead to a misdemeanor in district court.
Furthermore, this Court’s solution begs the question, if this Court would not
carve out a subject-matter jurisdiction exception for public policy then how could this
11 – Appellant’s Response to State’s Petition for Discretionary Review
Court create an estoppel exception when subject-matter jurisdiction is an “absolute
systemic requirement[-] * * * and [is] not forfeitable?” Marin v. State, 851 SW2d 275
(Tex.Crim.App.1993.) Subject-matter jurisdiction is “independent of the litigant’s
wishes. Implementation of these requirements is not optional and cannot, therefore, be
waived or forfeited by the parties.” Marin at 279.
Furthermore, Tex.Code Crim. Proc. art. 21.26 statutorily provides the solution as
articulated in Murray. It states:
“Upon the filing of an indictment in the district court which charges an
offense over which such court has no jurisdiction, the judge of such
court shall make an order transferring the same to such inferior
court as may have jurisdiction, stating in such order the cause
transferred and to what court transferred.” (emphasis added).
The plain wording of the statute creates a requirement for the trial court and not
of Appellant. This is a statutory requirement of the trial court to act as the gatekeeper to
ensure that a misdemeanor is before a court of competent jurisdiction. When the State
amended the indictment to include a misdemeanor and then dismissed all of the felony
counts, the trial court was required to sua sponte transfer the case “to such inferior
court as may have jurisdiction.” Id. The trial court did not do this.
In Moss this unanimous Court explained the importance of jurisdiction as
follows:
12 – Appellant’s Response to State’s Petition for Discretionary Review
“We have held that a lack of personal or subject-matter jurisdiction
deprives a court of any authority to render a judgment. See Garcia,
596 S.W.2d at 527 (quoting Ex parte Armstrong, 110 Tex. Crim. 362,
366, 8 S.W.2d 674, 675-76 (1928) (stating that "[u]nless the power or
authority of a court to perform a contemplated act can be found in the
Constitution or laws enacted thereunder, it is without jurisdiction and its
acts without validity.")). We have further explained that when a court acts
without jurisdiction, such as by entering a judgment without the necessary
authority to do so, the purported action taken by the court is void. See Nix
v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (identifying a lack
of personal or subject-matter jurisdiction as reasons a judgment would be
void). * * * In contrast, if a defendant confesses and is convicted at
trial because he is guilty of the crime committed, but the court lacked
subject-matter or personal jurisdiction over the defendant, the
judgment of conviction is void. See Marin, 851 S.W.2d at 279 (citing
Garcia, 596 S.W.2d at 527).” Moss, at 788-789. (Emphasis added).
This is exactly the case before this Court. It does not matter if Appellant
accepted the plea bargain advanced by the State, that it was beneficial to him, or that he
waited twelve (12) years to file his writ challenging the jurisdiction of the convicting
court.
This is not a case where Appellant took his case to trial and requested a jury
instruction for a lesser-included offense. The facts of this case show that it was the
State who amended the indictment to include an offense that was a misdemeanor for
which the trial court lacked jurisdiction. (CR 31; WHC-Ex. 3). The State then filed a
motion to dismiss the felony counts originally alleged and proceeded with the
misdemeanor offense, which the trial court granted. (CR 34; WHC-Ex. 4); (CR 36;
13 – Appellant’s Response to State’s Petition for Discretionary Review
WHC-Ex. 5). When the trial court granted the State’s motion to dismiss on the felony
counts, it lost jurisdiction over Appellant because the amended indictment failed to
charge a felony for which terroristic threat is a lesser-included offense.
The State is correct in that there are two (2) cases where estoppel bared subject-
matter jurisdiction claims. (PDR 9). The State cites Ex parte Sledge, 391 S.W.3d 104,
108 (Tex.Crim. App.2013) and DeDonato v. State, 819 S.W.2d 164, 166-67
(Tex.Crim.App.1991). Id. These cases are easily distinguishable and are not applicable
to the case at bar. This Court denied habeas relief in Sledge because the defendant
raised his jurisdictional claim in a second writ and not his first. Sledge at 111. This was
Appellant’s first writ of habeas corpus.
DeDonato is inapplicable and does not stand for the proposition the State
asserts. The State relies on Justice Maloney’s concurrence in that case regarding
estoppel being applied to subject-matter jurisdiction. (PDR 9). Justice Maloney agreed
with the decision but not with the majorities reasoning. DeDonato at 167. In particular,
Maloney disagreed with the decision because it failed to account for the various other
provisions in the Code of Criminal Procedure that define the jurisdictional limits of the
various courts. In any event, this Court held that jurisdiction was established because at
the time the law allowed for the offense to be prosecuted as a Class B or Class C
14 – Appellant’s Response to State’s Petition for Discretionary Review
misdemeanor. Id at 166. Therefore, the trial court did have subject-matter jurisdiction.
Dedonato relied on Studer v. State, 799 S.W.2d 263, 267 fn. 7 (Tex.Cr.App.1990).
Since Dedonato this Court has has addressed Justice Maloney’s concerns by
addressing Studer in several cases. As it applies to determining subject-matter
jurisdiction, this Court stated in Teal v. State, 230 S.W.3d 172, 181
(Tex.Crim.App.2007):
“Implicit within both Studer and Cook is that ‘the offense’ charged must
be one for which the trial court has subject-matter jurisdiction. Although
the ‘indictment’ provision of the constitution explicitly speaks only of the
two requirements of ‘a person’ and ‘an offense,’ the constitution also sets
out the subject-matter jurisdiction of Texas courts. An indictment must
also satisfy the constitutional requirement of subject-matter
jurisdiction over ‘an offense.’” (emphasis added, footnote omitted).
The indictment “must be capable of being construed as intending to charge a
felony (or a misdemeanor for which the district court has jurisdiction).” Teal at 181. As
it pertains to the case at bar, the State failed to amend the indictment charging a felony
or misdemeanor for which the trial court had subject-matter jurisdiction. The amended
indictment added Count Seven (7) which reads:
“On or about April 27th, 2001, the [Appellant] did then and there
threaten [the alleged victim] with an offense involving violence and
[Appellant] did that with the intent to place [the alleged victim] in fear of
imminent serious bodily injury, in Denton County, Texas, against the
peace and dignity of the state.” (CR 31; WHC-Ex. 3).
15 – Appellant’s Response to State’s Petition for Discretionary Review
The State tracked the language of the misdemeanor offense of Terroristic Threat.
TEX. PENAL CODE ANN. § 22.07 (a)(2)(West 1994)(CR. 52, WHC-Ex. 11). The
statute at the time of Appellant’s trial and alleged plea read:
“(a) A person commits an offense if he threatens to commit any offense
involving violence to any person or property with intent to:
(2) place any person in fear of imminent serious bodily injury;”
However, this is not an offense for which the district court had subject matter
jurisdiction. The offense alleged was a Class B misdemeanor (instead of a Class A
misdemeanor, which the judgment reflects). The statute regulating punishment for the
offense of Terroristic Threat at the time read:
“An offense under Subdivision (1) or (2) of Subsection (a) is a Class B
misdemeanor. An offense under Subdivision (3) of Subsection (a) is a
Class A misdemeanor. An offense under Subdivision (4) of Subsection
(a) is a felony of the third degree.” TEX. PENAL CODE ANN. § 22.07
(b)(West 1994)(CR 52; WHC-Ex. 11).
Article 1 § 10 of the Texas Constitution requires that unless waived by the
defendant, the State must obtain a grand jury indictment in a felony case. Without an
indictment or valid waiver a District Court does not have jurisdiction over that case.
Cook v. State, 902 S.W.2d 471, 475-76 (Tex. Crim. App. 1995) (collecting cases and
stating, "Jurisdiction vests only upon the filing of a valid indictment in the appropriate
court."). For an indictment to be constitutionally valid and vest a District Court with
16 – Appellant’s Response to State’s Petition for Discretionary Review
subject-matter jurisdiction it must meet the test enunciated in Teal v. State, 230
S.W.3d 172, 179-181 (Tex.Crim.App.2007)(citing Cook v. State, 902 S.W.2d 471
(Tex. Crim. App. 1995)).
On its face the amended indictment failed to allege an offense for which the
District Court had subject-matter jurisdiction because the charged misdemeanor did not
allege a “misdemeanor[] involving official misconduct” nor was it a misdemeanor case
that was transferred to this Court under Article 4.17 of the Penal code. See Tex.Code
Crim. Proc. art. 4.05. “[T]he indictment, * * *, must be capable of being construed as
intending to charge a felony” (or a misdemeanor for which the district court has
jurisdiction). Teal at 181. There is absolutely no evidence in the record that the
amended indictment was intended to charge a felony. Ergo, the trial court lacked
subject-matter jurisdiction to accept Appellant’s plea.
The State’s assertion that this Court should write on the issue because these
specific facts have not been decided by this Court is unnecessary. (PDR 9). The State
primarily relies on Hall v. State, 225 S.W.3d 524, 537-38 (Tex. Crim. App. 2007)
(Keller, P.J., dissenting) (discussing the doctrine of "beneficial acquiescence") and
McKinney v. State, 207 S.W.3d 366, 376 (Tex. Crim. App. 2006)(Keller, P.J.
concurring). However, both of these cases are inapplicable because they deal with a
17 – Appellant’s Response to State’s Petition for Discretionary Review
defendant requesting a lesser-included offense during trial and do not address the trial
court’s subject-matter jurisdiction.
Finally, the State’s argument that it has been prejudiced is completely without
merit. (PDR 13). As previously argued, it was the State who amended the indictment
and requested that the felony counts be dismissed. Had the State wanted to address
this issue it should have done so at trial and not after Appellant filed his writ of habeas
corpus.
The reason it is unnecessary to write on this issue is because this Court has
consistently held that subject-matter jurisdiction cannot be conferred by agreement of
the parties. Supra. Without jurisdiction, a court as no authority to act, including
accepting a plea bargain for which it lacks jurisdiction. Supra. The State’s petition
should be denied.
PRAYER
The Second Court of Appeals correctly decided the issue based upon this
Court’s precedent and the facts. This Court should deny the State’s petition for
discretionary review because the law and this Court’s precedent are well established in
this area.
18 – Appellant’s Response to State’s Petition for Discretionary Review
Respectfully Submitted,
/s/Fred Marsh
FRED MARSH SBOT# 13016000
EDWARD NOLTER SBOT#24081073
Marsh& Paine, P.C.
101 S. Woodrow
Denton, TX 76205
Tel: (940) 382-4200
Fax: (940) 382-4288
FDM@MARSHPAINELAW.COM
EJN@MARSHPAINELAW.COM
CERTIFICATE OF COMPLIANCE
Appellant certifies that the this reply brief in the instant cause contained a word count
of 3,652, said count being generated by the computer program Microsoft Word that was used
to prepare the document.
Signed this, the 5th day of December, 2015.
/s/Fred Marsh
FRED MARSH
CERTIFICATE OF SERVICE
A copy of the foregoing Appellant’s Brief has been forwarded to the District Attorney
of Denton County, Texas on this the 5th day of December, 2015.
/s/Fred Marsh
FRED MARSH
19 – Appellant’s Response to State’s Petition for Discretionary Review
Derosier, Ex Parte Andre
Combined Opinion