            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. PD-1658-11



                    MARICELA RODRIGUEZ GUTIERREZ, Appellant

                                               v.

                                  THE STATE OF TEXAS



               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                     FROM THE SIXTH COURT OF APPEALS
                               SMITH COUNTY

        P RICE, J., delivered the opinion of the Court in which M EYERS, W OMACK ,
J OHNSON, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. C OCHRAN, J., filed
a concurring opinion in which J OHNSON, J., joined. K ELLER, P.J., concurred in the
result.

                                        OPINION

       The trial court revoked the appellant’s community supervision because she failed to

comply with a condition that required her either to obtain legal status to remain in this

country within twelve months or else “leave the country and reside in a location where [she

does] have a legally authorized status.” The appellant failed to object to this condition at the
                                                                                         Gutierrez — 2


time it was imposed and, in fact, twice requested an extension of the time allotted for her to

comply with it before the State filed its motion to revoke. The Texarkana Court of Appeals

nevertheless reversed the trial court’s revocation order, holding that the community

supervision condition that she leave the country “could not be enforced” because it invaded

the prerogative of the federal government to decide whether to remove illegal immigrants

from the United States.1 We granted the State’s petition for discretionary review in order to

examine this holding.2 We now affirm.

                          FACTS AND PROCEDURAL POSTURE

                                         In the Trial Court

        The appellant was indicted for the offense of possession of cocaine in an amount

greater than four and less than 200 grams, a second degree felony.3 Pursuant to a plea

agreement, the appellant pled guilty to this offense on April 19, 2004. On May 12, 2004, the

trial court sentenced the appellant to ten years’ confinement in the penitentiary but suspended

the sentence, placing her on community supervision for ten years—all in accordance with the

        1

        Gutierrez v. State, 354 S.W.3d 1, 7 (Tex. App.—Texarkana 2011).
        2

          T EX. R. A PP. P. 66.3(a), (b) & (c). At least one other court of appeals has held, albeit in an
unpublished opinion, that a defendant’s failure to object to a condition of community supervision that
he must remain in Honduras, his native country, for the duration of his probationary period constituted
a forfeiture of any appellate complaint to revocation based upon a violation of that condition. Garcia
v. State, No. 08-03-00296-CR, 2005 WL 1361692 (Tex. App.—El Paso, delivered June 9, 2005) (not
designated for publication).
        3

        T EX. H EALTH & S AFETY C ODE §§ 481.102(3)(D) & 481.115(d).
                                                                                  Gutierrez — 3


recommendation of the State in keeping with the plea agreement reached by the parties. As

one of the conditions of community supervision, the trial court announced in open court that

it was

         also going to order that you file for your appropriate legal status through the
         Department of Homeland Security, or whichever federal agency that is in
         charge of that these days. And that you do that within 90 days of this date and
         that you provide notice to your probation officer in proof of that, that you have
         in fact followed up and done that. You can’t control how fast they act on their
         processing that application, but you can promptly get it filed.

The trial court also informed the appellant that she would receive a written copy of the terms

and conditions of her community supervision before she left the courtroom. The record does

in fact contain a written memorialization of the above condition, signed by both the appellant

and the judge on the same day as the sentencing hearing, May 12th . In addition, the written

terms and conditions informed the appellant: “At the end of twelve (12) months from the date

probation begins, if you have not obtained legal status from the [United States Bureau of

Immigration and Customs Enforcement] for being within Smith County, Texas, you must

leave the country and reside in a location where you do have a legally authorized status.”

Although these conditions were not, for all the record reveals, an integral part of the plea

agreement by the parties, the appellant voiced no objection to them.

         Over the course of the next six years, at the appellant’s request, the trial court twice

extended the allotted period of time that it had originally granted the appellant to “obtain

legal status”—first until May 12, 2007 (three years to the day after the condition was
                                                                               Gutierrez — 4


originally imposed), and then again until May 12, 2010 (three years after the expiration of

the first extension). On July 19, 2010, the State filed a motion to revoke the appellant’s

community supervision. As grounds for revocation, the State alleged that, as of May 12,

2010, the appellant had neither (1) provided proof to her probation officer that she had

applied for legal status, nor (2) left the country. No other basis for revocation was alleged.

The trial court conducted a hearing on the State’s motion to revoke on December 1, 2010.

At the outset of the hearing, the State abandoned the first alleged basis for revocation,

electing to proceed only on the allegation that the appellant had failed to leave the country.

Represented by different counsel than at the initial plea proceedings in 2004, the appellant

pled true to that violation. At no time did she complain that the probationary condition that

she leave the country was objectionable to her in any way. The trial court ordered that the

appellant’s community supervision be revoked exclusively on the basis of her failure to leave

the country. It then reduced the appellant’s sentence to five years’ confinement in the

penitentiary, entered judgment accordingly, and certified the appellant’s right to appeal.

                                  In the Court of Appeals

       For the first time on appeal, the appellant complained that the trial court erred in

revoking her community supervision on the basis of a violation of the condition that she

leave the country should she fail to timely obtain legal status. On the authority of this
                                                                                          Gutierrez — 5


Court’s opinion in Hernandez v. State,4 the appellant argued that the sole condition upon

which her community supervision was revoked was invalid because it impinged upon the

federal government’s exclusive power to regulate the removal of illegal aliens, in violation

of the Supremacy Clause of the United States Constitution.5 The State acknowledged that,

consistent with Hernandez, the trial court lacked the authority to order the appellant to leave

the country, but countered with Speth v. State,6 in which we later held that complaints about

a condition of community supervision are ordinarily procedurally defaulted for appellate

purposes if not first raised in the trial court. Indeed, the very claim that Speth attempted to

raise for the first time on appeal from his revocation proceeding was apparently that the trial

court lacked the authority to impose several of the conditions about which he complained.7

        4

        613 S.W.2d 287 (Tex. Crim. App. 1981) (opinion on reh’g).
        5

        U. S. C ONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”).
        6

        6 S.W.3d 530 (Tex. Crim. App. 1999) (hereinafter, “Speth II”).
        7

         We did not explicitly say so in Speth itself, but we did observe that, in the cases upon which
Speth relied, the appellants were permitted to raise the issue of unauthorized sentences for the first time
on appeal, and it was these cases that we distinguished. Speth, supra, at 531-32. See also Speth v.
State, 965 S.W.2d 13, 16-17 (Tex. App.—Houston [14th Dist.] 1998) (hereinafter, “Speth I”)
(sustaining Speth’s second and fifth points of error complaining that conditions of probation were,
inter alia, “unauthorized by law”). From this circumstance, Professors Dix and Schmolesky have
deduced the import of our holding in Speth to be—categorically—that “a complaint that [a condition
of community supervision] is unauthorized must be raised in the trial court.” George E. Dix & John
M. Schmolesky, 43A T EXAS P RACTICE: C RIMINAL P RACTICE AND P ROCEDURE § 53:148, at 1172 (3 rd
ed. 2011).
                                                                                  Gutierrez — 6


But the appellant in Hernandez did not object at the trial court level either, and yet this Court,

holding that any condition of probation that encroaches upon the federal government’s

monopoly upon matters of alien deportation is “void,” nevertheless overturned the revocation

of his probation—without making any reference to procedural default.8

       Ruling in the appellant’s favor, the court of appeals declared that “we do not believe

that Speth and Hernandez are mutually exclusive.”9 The court of appeals reasoned:

       According to Speth, [one] can contract for, and be bound by, unconstitutional
       conditions of community supervision, such conditions being described by the
       court as a “defect.” Failure to object results in waiver of the defect. But
       Hernandez says the trial court had no power to do what it did. According to
       Hernandez, the unlawful condition, one the court had no authority to employ,
       was void and thus could not be enforced. The condition is not merely
       unreasonable, and it does not merely violate a constitutional right of the
       defendant. It violates the exclusive authority of the United States of America
       to absolutely control immigration to, and banishment from, the United States.
       The condition itself violated the Supremacy Clause of the United States
       Constitution.10

The court of appeals therefore reversed the trial court’s order revoking the appellant’s

community supervision, concluding that “the condition is void, and that the revocation,

premised solely on [the appellant’s] violation of that condition, cannot stand.” 11


       8

        Hernandez, supra, at 290.
       9

        Gutierrez, supra, at 6.
       10

        Id. at 7.
       11

        Id.
                                                                                       Gutierrez — 7


                                   On Discretionary Review

       In its brief on discretionary review, the State now challenges the court of appeals’s

holding on what amounts to two grounds. First, the State argues, the court of appeals’s

purported distinction between Speth and Hernandez is invalid.                  Speth reiterated that

probation is essentially a contractual relationship between the court and the defendant, “and

conditions thereof are terms of the contract entered into between the trial court and the

defendant.”12 “A defendant who benefits from the contractual privilege of probation, the

granting of which does not involve a systemic right or prohibition, must complain at trial to

conditions he finds objectionable.”13 Thus, the State maintains, issues with respect to the

validity, vel non, of conditions of community supervision do not implicate the kind of

absolute requirements rights or prohibitions that are so fundamental as to be “not optional”

with the parties under the rubric of Marin v. State.14 Therefore, concludes the State, even a

       12

        Speth II, supra, at 534. See also McDonald v. State, 442 S.W.2d 386, 387 (Tex. Crim. App.
1969) (“This Court has consistently held that where the trial court grants probation, the relationship
between the court and the probationer is contractual in nature[.]”).
       13

        Id.
       14

        851 S.W.2d 275, 279 (Tex. Crim. App. 1993). In Marin, we summarized:

               Thus, our system may be thought to contain rules of three distinct kinds: (1)
       absolute requirements and prohibitions; (2) rights of litigants which must be
       implemented by the system unless expressly waived; and (3) rights of litigants which
       are to be implemented upon request. In the present context, the most important thing
       to remember about the Texas law of procedural default is that it only applies to the last
       category.
                                                                                Gutierrez — 8


condition of community supervision that is unauthorized must be raised in the trial court as

a predicate to appellate relief. Hernandez was decided a number of years before Speth, and

the issue of procedural default was not expressly addressed there, much less decided; under

these circumstances, the State insists, Speth should control.

       Second, and in any event, the State continues, the appellant should be estopped from

complaining of the unauthorized condition on appeal. Because community supervision is a

contractual relationship, a prospective probationer may agree to abide by an unauthorized

condition “by entering into the contractual relationship without objection[.]”15 When the

probationer reaps the benefits of that contractual relationship, he should be estopped from

subsequently complaining about the unauthorized condition on appeal, under Rhodes v.

State.16 The Rhodes doctrine of estoppel by contract should apply, the State argues, even

though the trial court was absolutely prohibited by the Supremacy Clause from imposing a

condition impinging upon the federal government’s deportation-decision prerogative.

                                        ANALYSIS

                    Hernandez v. State: Deportation and Banishment

       In Hernandez, the appellant’s felony probation was revoked for a violation of the




Id.
       15

       Speth II, supra, at 534.
       16

       See 240 S.W.3d 882, 891 (Tex. Crim. App. 2007) (discussing estoppel by contract).
                                                                                Gutierrez — 9


condition that he remain in Mexico and “not re-enter the U.S.A. legally or illegally without

prior written permission of” the trial court.17 This Court accepted as accurate the State’s

assertion that Hernandez actually left the country for Mexico of his own volition and turned

to the question whether the condition that he remain there and return to the United States,

legally or illegally, only with permission of the convicting court was an invasion of the

exclusive authority of the federal government to regulate immigration.18 Observing that

“there are areas of law relating to the activities of aliens in which the states are not wholly

preempted by federal law,” we held that “the matter of entry into the United States is not such

an area[,]” and declared that the conditions of Hernandez’s probation were incapable of

supporting revocation.19 Although Hernandez does not speak explicitly to the question

whether a state agent may order the deportation of an alien, there can be little doubt that for

a state-court judge unilaterally to do so “violates the principle that the removal process is

entrusted to the discretion of the Federal Government[,]” and that “[d]ecisions of this nature

touch on foreign relations” and cannot constitutionally be made by individual state agencies

because they “must be made with one voice.”20 The State accordingly concedes that the

       17

       Hernandez, supra, at 288 (opinion on original submission).
       18

       Id. at 289 (opinion on State’s motion for reh’g).
       19

      Id. at 290. For this proposition we relied principally upon Takahashi v. Fish & Game
Comm’n., 334 U.S. 410, 419 (1948) and Hines v. Davidowitz, 312 U.S. 52, 62-63 (1941).
       20

       Arizona v. United States, 132 S.Ct. 2492, 2506-07 (2012).
                                                                                     Gutierrez — 10


convicting court in this case lacked authority to order the appellant out of the country.

       If Hernandez made any objection to the invalid conditions of probation at the trial

court level, our opinions on original submission and rehearing in Hernandez failed to

mention it. Hernandez preceded Marin by a dozen years. It is therefore understandable that

we made no explicit determination whether a complaint about purported state action that is

preempted by federal law under the Supremacy Clause of the United States Constitution may

be forfeited by inaction, may be expressly waived, or instead implicates a systemic

requirement or prohibition, not optional with the parties, that may be vindicated on appeal

even absent a trial objection or in the face of an express waiver.21

       In a concurring opinion on rehearing in Hernandez, Judge Roberts asserted that the

conditions of probation also violated Article I, Section 20, of the Texas Constitution.22 This

provision expressly and unequivocally prohibits the banishment of criminal offenders from

the State.23 In a concurring opinion in an earlier case, Judge Roberts had similarly argued

that a condition of probation that required the probationer to return to Mexico and remain




       21

        See Marin, supra, at 278-79 (distinguishing appellate claims that are forfeitable, waiver-only,
and those which are “not optional and cannot, therefore, be waived or forfeited by the parties”).
       22

        Hernandez, supra, 290 (Roberts, J., concurring).
       23

       See T EX. C ONST. art. I, § 20 (“No person shall be transported out of the State for any offense
committed within the same.”).
                                                                                 Gutierrez — 11


there “literally requires transportation” and “is a plain violation of the Texas Constitution.” 24

Like the majority in Hernandez, however, Judge Roberts never expressed an opinion whether

such a plain violation could be vindicated on appeal absent a timely objection in the trial

court. The State now asserts, however, that we later determined in Speth that any complaint

about a condition of community supervision is subject to procedural default, whatever the

asserted basis for its invalidity. Although we concede that Speth is susceptible to this

categorical interpretation,25 we reject that reading of the opinion today.

                             Speth v. State: Procedural Default?

       Speth was convicted of the offense of aggravated assault of a peace officer and placed

on deferred-adjudication probation.26 He was later charged with the offense of indecency

with a child.27 Although a jury acquitted Speth of the indecency charge, the trial court

nevertheless proceeded to adjudicate him guilty of the aggravated assault offense based on

the facts proffered by the State to support the indecency charge, and placed Speth on regular

probation.28 As a condition of that regular probation, Speth was required, inter alia, to


       24

        Reza v. State, 608 S.W.2d 688, 690 (Tex. Crim. App. 1980) (Roberts, J., concurring).
       25

        See note 7, ante.
       26

        Speth I, supra, at 14; Speth II, supra, at 531.
       27

        Speth I, supra, at 14; Speth II, supra, at 531.
       28

        Speth I, supra, at 14-15; Speth II, supra, at 531.
                                                                                    Gutierrez — 12


register as a sex offender, submit to and pay for polygraph testing, pay for counseling for the

victims of the alleged indecency offense, and refrain from contact with minor girls for the

duration of his probationary period.29 Speth challenged these conditions as, inter alia,

unauthorized in view of the jury’s verdict acquitting him of the indecency charge.30

Although Speth had not objected to these conditions in the trial court, the court of appeals

held each of them to be invalid.31

       In its petition for discretionary review, the State argued that Speth had procedurally

defaulted his complaints for appellate purposes by failing to assert them in the trial court.32

Speth countered by invoking a line of cases in which this Court has held that a punishment

that is not authorized by law may be challenged at any time, including for the first time on

direct appeal.33 We found this line of cases, however, to be “inapposite.” 34 First, we pointed

       29

        Speth I, supra, at 15; Speth II, supra, at 531 n.1.
       30

        Speth II, supra, at 531.
       31

        Speth I, supra, at 18; Speth II, supra, at 531.
       32

        Speth II, supra, at 531.
       33

         Id. Speth had cited: Heath v. State, 817 S.W.2d 335-336 (Tex. Crim. App. 1991) (opinion
on original submission); Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1994); Ex parte
Johnson, 697 S.W.2d 605, 606-07 (Tex. Crim. App. 1985); and Wilson v. State, 677 S.W.2d 518, 524
(Tex. Crim. App. 1984). See also Ex parte Rich, 194 S.W.3d 508, 511 & n.3 (Tex. Crim. App. 2006)
(claim that sentence is void may be raised at any time, including in post-conviction habeas
proceedings); Mizell v. State, 119 S.W.3d 804, 806 & n.6 (Tex. Crim. App. 2003) (“A trial or
appellate court which otherwise has jurisdiction over a criminal conviction may always notice and
correct an illegal sentence. * * * There has never been anything in Texas law that prevented any court
                                                                                      Gutierrez — 13


out that community supervision is “not a sentence or even a part of a sentence.” 35 But more

critically, we observed that the requirement that a defendant be sentenced within the

statutorily applicable range of punishment is an “absolute and nonwaivable” feature of the

system within the Marin rubric, the contravention of which can be raised at any time.36 By

contrast, the decision whether to grant an eligible defendant probation is highly discretionary,

as is the judicial determination of what conditions of probation “may” be imposed as

appropriate “to protect or restore the community, protect or restore the victim, or punish,

rehabilitate, or reform the defendant.”37 Within this broadly discretionary scheme, we

explained, the assessment of a particular condition of community supervision will not

ordinarily implicate an absolute feature of the system, not optional with the parties, in the

same way that a sentence that is manifestly outside the statutorily applicable range of

punishment does.38


with jurisdiction over a criminal case from noticing and correcting an illegal sentence.”).
        34

        Speth II, supra, at 532.
        35

        Id.
        36

        Id. at 532-33 & n.5.
        37

        Id. at 533 (citing T EX. C ODE C RIM. P ROC. art. 42.12, § 11(a)).
        38

         See Id. at 534 (“Because Section 11 [of Article 42.12] is so broadly discretionary, it does not
establish a narrowly identifiable ‘universe of punishments applicable to the offense’ in the same
manner as the statutory sentencing schemes at issue” in the line of cases that Speth invoked) (quoting
Ex parte Johnson, supra, at 607) .
                                                                                          Gutierrez — 14


        We are not inclined to read Speth so categorically as to hold that a defendant may not

complain for the first time on appeal of a condition of probation which violates an absolute

prohibition as envisioned by Marin. This is not to say that a defendant will not forfeit many,

if not most, appellate complaints—even most constitutional complaints—about particular

conditions of community supervision by failing to object at trial, or that he will not

effectively waive any constitutional or statutory waiver-only right that might be violated by

a condition of community supervision he has agreed to follow in his contractual relationship

with the trial court.39 But he cannot agree to submit to a condition of community supervision

that the criminal justice system simply finds intolerable and which is therefore, by definition,

not even an option available to the parties.

        That is implicitly what we held the condition of probation in Hernandez to be—so

antithetical to the aims of the justice system as a whole as to be intolerable, and therefore, not

subject to agreement by the parties. The trial court in this case clearly lacked the authority

to order the appellant to leave the country in derogation of the federal preemption over




        39

          See, e.g., Belt v. State, 127 S.W.3d 277, 282 (Tex. App.—Fort Worth 2004, no pet.) (court
of appeals refused to reach the merits of due-process challenge to particular conditions of community
supervision because not raised below, though it did reach the merits of non-constitutional challenges
that the appellant had properly preserved by trial objection); Hart v. State, 264 S.W.3d 364, 368 (Tex.
App.—Eastland 2008, pet. ref’d) (complaint that condition of community supervision encroached upon
the appellant’s constitutional right to free exercise of religion not preserved for appeal); Little v. State,
___ S.W.3d ___, 2012 WL 3030565, at * 6-11 (Tex. App.—Fort Worth, delivered July 26, 2012) (due
process challenge to supplemental condition of community supervision not preserved for appeal when
the appellant failed to complain about it for the three years preceding State’s motion to revoke).
                                                                                        Gutierrez — 15


matters involving deportation.40 Moreover, as Judge Roberts has pointed out, for the trial

court to do so violated the constitutional stricture—expressed by Article I, Section 20, of the

Texas Constitution, not in terms of a forfeitable or waiver-only right of a litigant, but as a flat

prohibition—against banishment as an acceptable punishment for the commission of a crime.

In short, a state trial court may no more order a convicted defendant to leave the State than

        40

         Relying upon our opinion in Ex parte Medellin, 223 S.W.3d 315, 330-31 (Tex. Crim. App.
2006), the State asserts that “this Court has recently held that at least one Supremacy Clause-based
claim does not involve absolute or nonwaivable rights and is subject to the rules of procedural default.”
State’s Brief at 15. If by this the State means to suggest that a claim raised for the first time on appeal
should not necessarily be regarded as “involving” a systemic requirement or prohibition simply
because the federal constitutional right it invokes has been declared applicable to the states through
the Supremacy Clause, then we readily agree. As we have already observed, most federal
constitutional rights are in fact subject to either waiver or forfeiture. See note 39, ante. That an
appellate claim has its roots in the federal constitution does not alone determine its status under the
Marin categories. But by the same token, we have not held, in Medellin or in any other opinion, that
a claim raised for the first time on appeal may never be regarded as invoking a systemic requirement
or prohibition under Marin when it is based on the Supremacy Clause.

         In any event, Medellin itself is inapposite. Medellin claimed that for Texas to apply its
statutory abuse-of-the-writ doctrine to prevent him from claiming, for the first time in a successive
post-conviction application for writ of habeas corpus, that his rights under the Vienna Convention on
Consular Relations had been violated would itself violate the International Court of Justice’s (ICJ)
construction of that treaty—a construction that he argued was binding on Texas by virtue of the
Supremacy Clause. Medellin, supra, at 330. Following the lead of the United States Supreme Court,
however, we held that the ICJ’s construction of the treaty was not binding on the United States, and
that the Supreme Court’s own construction of the Vienna Convention would allow a signatory state
to apply its doctrines of procedural default in assessing the validity of a claimed violation of consular
rights under the terms of the treaty. Id. at 332 (citing Sanchez-Llamas v. Oregon, 548 U.S. 331, 355-
57 (2006)). In short, we did not hold in Medellin that a “Supremacy Clause-based claim” may be
forfeited. Rather, we held that Medellin was mistaken to assert that the Supremacy Clause was even
implicated, given that the ICJ’s interpretation of the treaty did not control, and that Texas was therefore
free to exercise its statutory abuse of the writ doctrine, notwithstanding the ICJ’s ruling. See Medellin
v. Texas, 552 U.S. 491, 504-06 (2008) (“not all international law obligations automatically constitute
binding federal law enforceable in United States courts” by virtue of the Supremacy Clause, and terms
of the Vienna Convention as construed by the ICJ were not domestically enforceable in the absence
of a self-executing treaty or legislative implementation).
                                                                                  Gutierrez — 16


it may punish him with a sentence that is beyond the statutorily applicable range of

punishment. Although we rejected the comparison to the illegal-sentence line of cases with

respect to the particular conditions of probation that were in issue in Speth, we think it is an

apt enough analogy in the context of a condition of community supervision that both invades

a federal prerogative, in violation of the Supremacy Clause, and violates an explicit and

unqualified state constitutional prohibition. We now expressly hold what Hernandez merely

implied, namely, that a condition of community supervision that effectively operates to

deport a probationer violates an absolute prohibition and is therefore not subject to ordinary

principles of waiver or procedural default.

                                  Rhodes v. State: Estoppel?

       Even if Hernandez identified an absolute prohibition within the rubric of Marin, the

State argues, it should make no difference to our disposition of the appellant’s case. The

basis for this argument derives from this Court’s recognition, in Saldano v. State, that under

some circumstances, the doctrine of estoppel can trump even Marin’s category of non-

forfeitable/non-waiveable absolute requirements or prohibitions.41 And in Rhodes v. State,

we identified two species of estoppel that we described as “close cousins” of one another:




       41

        70 S.W.3d at 888 & n.69 (“We have held that a party may be estopped from relying on an
absolute requirement.”) (citing Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999) and State v.
Yount, 853 S.W.2d 6 (Tex. Crim. App. 1993)).
                                                                                Gutierrez — 17


estoppel by judgment, and estoppel by contract.42 These types of estoppel, we observed,

would apply to nullify any kind of systemic breakdown except for a lack of subject matter

jurisdiction.43 We ultimately held in Rhodes 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.” 44 The

State now argues that, because the trial court had subject matter jurisdiction to place the

appellant on community supervision, and the appellant enjoyed the benefit of her contract

with the trial court to place her on community supervision in exchange for her promise to

abide by prescribed conditions, the appellant should now be estopped from complaining of

a particular condition.

       We do not think that either estoppel doctrine is applicable here. With respect to

estoppel by contract, that doctrine does not apply when the relevant terms of the contract are

unenforceable on grounds of public policy.

       An important exception to the rule [of estoppel by contract] that is usually
       recognized is that, where the contract is void as against public policy or against
       an express mandate of the law, a person who has accepted a benefit thereunder
       will not be estopped from defending against the contract when it is sought to




       42

       Rhodes, supra, at 891.
       43

       Id.
       44

       Id. at 892.
                                                                                 Gutierrez — 18


         be enforced against him or her.45

Looking to the Restatement (Second) of Contracts, in State v. Williams, this Court

acknowledged that “[e]nforcement of some contracts may be precluded on the ground of

public policy.”46 The particular Restatement (Second) provision we invoked in Williams

reads:

         (1) A promise or other term of an agreement is unenforceable on grounds of
         public policy if legislation provides that it is unenforceable or the interest in
         its enforcement is clearly outweighed in the circumstances by a public policy
         against the enforcement of such terms.

         (2) In weighing the interest in the enforcement of a term, account is taken of

                (a) the parties’ justified expectations,

                (b) any forfeiture that would result if enforcement were denied,
                and

                (c) any special public interest in the enforcement of the
                particular term.

         (3) In weighing a public policy against enforcement of a term, account is
         taken of

                (a) the strength of that policy as manifested by legislation or
                judicial decisions,

                (b) the likelihood that a refusal to enforce the term will further
                that policy,



         45

         31 C.J.S. Estoppel and Waiver § 164, at 544 (2008).
         46

         State v. Williams, 938 S.W.2d 456, 460 (Tex. Crim. App. 1997).
                                                                                       Gutierrez — 19


                (c) the seriousness of any misconduct involved and the extent
                to which it was deliberate, and

                (d) the directness of the connection between that misconduct
                and the term.47

Applying these criteria, it is apparent to us that any agreement that the appellant may have

reached with the trial court with respect to her deportation was unenforceable, and therefore

not subject to estoppel by contract.

        Considering first the factors that might favor enforcement, we perceive no justifiable

expectations of enforcement by either the State or the trial court, no forfeiture that either the

State or the trial court would suffer on account of the failure to enforce it, and no special

public interest to be served by its enforcement. By contrast, at least three of the four criteria

militating against enforcement are clearly present. The strength of the policy against

enforcement is profound, deriving as it does both from an overriding federal constitutional

interest in maintaining centralized control over all matters involving deportation and an

unequivocal state constitutional prohibition against banishment as an acceptable response to

crime.48 Refusal to enforce the condition clearly furthers these respective federal and state

policies. And while we have no doubt that the trial court did not deliberately set out to



        47

        Restatement (Second) of Contracts § 178 (1981).
        48

        Under Section 178, subsection 3(a), “‘legislation’ is used . . . in the broadest sense to include
any fixed text enacted by a body with authority to promulgate rules, including not only statutes, but
constitutions . . . .” See id, Comment (a).
                                                                                      Gutierrez — 20


fashion a condition of community supervision that would violate these federal and state

constitutional imperatives, the connection between the offending condition and the federal

and state constitutional violations is undeniably direct. On balance, we do not think estoppel

by contract should apply.

        As for estoppel by judgment, in addition to the above public-policy considerations,

we note that appellate courts in Texas have consistently held that, before that doctrine may

apply, an appellant’s acceptance of the benefits of the judgment must be voluntary.49 In our

view, the appellant’s acceptance of the trial court’s ultra vires condition of community

supervision was not wholly voluntary. Counsel for the appellant informed the trial court at

the revocation hearing that the appellant and her husband provided the sole financial support



        49

         The general rule in Texas, “based on the principle of estoppel[,]” is that if an appellant “has
voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom.”
Carle v. Carle, 149 Tex. 469, 472, 234 S.W.2d 1002, 1004 (Tex. 1950). But “[a]cceptance of benefits
due to financial duress has been held not to constitute voluntary acceptance and is, therefore, an
exception to the rule applied in Carle.” Haggard v. Haggard, 550 S.W.2d 374, 376 (Tex. Civ.
App.—Dallas 1977, no writ) (citing, inter alia, Cherokee Nation v. United States, 174 Ct. Cl. 131, 139,
355 F.2d 945, 949 (Ct. Cl. 1966), in which acceptance of reduced award of attorney’s fees in court’s
judgment, where attorneys had incurred debilitating financial burden on account of the representation,
did not block appellate effort to restore originally-agreed-upon fees). See also Smith v. Texas
Commerce Bank - Corpus Christi, N.A., 822 S.W.2d 812, 814 (Tex. App.—Corpus Christi 1992, writ
denied) (“If economic circumstances compel a party to accept benefits, there is no voluntary
acceptance or acquiescence in the judgment, and the estoppel doctrine does not apply.”); Rogers v.
Rogers, 806 S.W.2d 886, 889 (Tex. App.—Corpus Christi 1991, no writ) (“The general rule is that
a party may not voluntarily accept the benefits of a judgment and attack it on appeal at the same time.
* * * There are, however, exceptions to this rule. For example, if economic circumstances compel
a party to accept benefits, there is no voluntary acceptance or acquiescence in the judgment, and the
estoppel doctrine does not apply.”); McCartney v. Mead, 541 S.W.2d 202, 205 (Tex. Civ.
App.—Houston [1st . Dist.] 1976, no writ) (“An exception [to estoppel by judgment] may also exist
where financial duress compels an involuntary acceptance of the judgment’s benefits.”).
                                                                                   Gutierrez — 21


for their four children, two of whom “have special needs” relating to Down’s syndrome.

Obviously, she had every incentive to accept any contingency that would rule out her having

to serve penitentiary time. Judge Womack has pointed out that “[p]robation may be imposed

on a defendant who does not wish it[.]” 50 What is more, a defendant ordinarily has no say

in the trial court’s decision regarding the appropriate conditions of community supervision.

What those conditions will be is not a product of negotiation; a defendant in the appellant’s

shoes must simply take them or leave them if she wants to avoid incarceration. Under these

circumstances, we do not think that the appellant’s acquiescence to the condition of

community supervision that she leave the country constitutes an “acceptance” sufficient to

trigger the doctrine of estoppel by judgment.

                                        CONCLUSION

       For these reasons, we affirm the judgment of the court of appeals.




DELIVERED:             October 10, 2012
PUBLISH




       50

         Speth II, supra, at 536 (Womack, J., concurring) (citing Roberson v. State, 852 S.W.2d 508,
512 (Tex. Crim. App. 1993)); Rickels v. State, 108 S.W.3d 900, 903 (Tex. Crim. App. 2003)
(Womack, J., concurring). See also Ivey v. State, 277 S.W.3d 43, 52 n.52 (Tex. Crim. App. 2009)
(trial court may impose community supervision, where statutorily authorized to do so, even though
defendant had elected to go to jury for punishment, jury did not recommend it, and defendant was not
“desirous” of it).
