                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00100-CR


EX PARTE ANDRE DEROSIER


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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F-2002-0330-E

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant, Andre Derosier, appeals from the trial court’s order denying him

relief on his application for writ of habeas corpus. In one point, Derosier argues

that because the trial court lacked subject-matter jurisdiction over the plea he

entered regarding the underlying offense that serves as the basis for his

requested relief, the trial court abused its discretion by denying his application.

We will reverse and remand for further proceedings consistent with this opinion.


      1
       See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      The State indicted Derosier on March 7, 2002, for six counts of indecency

with a child by contact. On the second day of his jury trial, November 13, 2002,

Derosier entered into a plea agreement with the State wherein he pleaded no

contest to the misdemeanor offense of terroristic threat2 in exchange for the State

dismissing the indecency charges.       Pursuant to the plea bargain, Derosier

received one day in jail with one day’s credit. Thus, Derosier did not serve any

additional time in jail nor any type of community supervision. Derosier claims,

however, that he suffers the collateral consequences from this misdemeanor

conviction of being unable to procure gainful employment. See Tatum v. State,

846 S.W.2d 324, 327 (Tex. Crim. App. 1993) (“[I]f a misdemeanor judgment is

void, and its existence may have detrimental collateral consequences in some

future proceeding, it may be collaterally attacked, whether or not a term of

probation was successfully served out.”).

      According to the trial court’s findings of facts in this habeas proceeding,

prior to his plea, the trial court properly admonished Derosier concerning his

rights and the consequences of his plea. Derosier and his attorney signed the

plea agreement along with other paperwork, including a waiver of his right to a

jury and the “Court’s Admonition of Statutory and Constitutional Rights and


      2
       One of the trial court’s findings reads that the plea agreement reached by
Derosier and the State “appears to have originally been for the offense of
‘assault,’ and that offense was crossed out and ‘terroristic threat’ was added.”


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Defendant’s Acknowledgment.”         Derosier did not object to the trial court’s

jurisdiction prior to entering his plea.       Twelve years after entering his plea,

Derosier filed in the trial court this original application for writ of habeas corpus,

alleging that the trial court lacked subject-matter jurisdiction over the

misdemeanor offense of terroristic threat. The trial court denied relief.

      In the trial court’s conclusions of law relating to its denial, the trial court

concluded that even though the plea-bargained judgment was “void,” Derosier

was not entitled to collaterally attack the judgment because he had “enjoyed the

benefits of an agreed judgment prescribing a too-lenient punishment.” In support

of its decision, the trial court cited to numerous Texas Court of Criminal Appeals

decisions that the trial court interpreted as standing for the proposition that “there

are instances where judgments that are void may not be attacked through a writ.”

Ultimately, the trial court concluded that Derosier was “estopped from

complaining about the plea agreement that he agreed to, and received the

benefit of the bargain from.” This appeal followed.

                                  III. DISCUSSION

      In one point, Derosier argues that the trial court abused its discretion by

denying his application for writ of habeas corpus because the trial court lacked

subject-matter jurisdiction over the misdemeanor charge he pleaded no contest

to, terroristic threat, and thus his plea-bargained-for judgment is void and the trial

court should have granted his application. The State does not dispute that the

trial court lacked subject-matter jurisdiction over the misdemeanor charge that


                                           3
Derosier pleaded no contest to.3 Instead, the State asserts numerous estoppel

theories as to why the trial court did not abuse its discretion by denying

Derosier’s application.

      A.    Standard of Review and Jurisdiction

      We review a trial court’s denial of the relief requested in an application for

a writ of habeas corpus under an abuse of discretion standard. See Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App.), cert. denied, 549 U.S. 1052

(2006); Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth 2011, pet.

ref’d); Ex parte Karlson, 282 S.W.3d 118, 127 (Tex. App.—Fort Worth 2009,

pets. ref’d). This means that we view the record in the light most favorable to the

trial court’s ruling and afford great deference to its findings and conclusions,

especially when they involve determinations of credibility and demeanor. Mello,

355 S.W.3d at 832. A trial court, however, has no discretion in determining what

the law is or applying the law to the facts. In re Hinterlong, 109 S.W.3d 611, 621

(Tex. App.—Fort Worth 2003, orig. proceeding [mand. denied]) (op. on reh’g).

      It is axiomatic that subject-matter jurisdiction cannot be conferred by

agreement of the parties; jurisdiction must be vested in a court by constitution or

statute. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996)

      3
        See Puente v. State, 71 S.W.3d 340, 343 (Tex. Crim. App. 2002) (“A
district court has jurisdiction over felony offenses. It does not have original
jurisdiction over misdemeanor charges, except those involving official
misconduct.”). (footnotes omitted) The State, the trial court, and Derosier all
agree that the trial court lacked subject-matter jurisdiction over the plea-
bargained-for judgment.


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(“[S]ubject matter jurisdiction cannot be conferred by agreement of the parties;

jurisdiction must be vested in a court by constitution or statute.”), overruled on

other grounds by State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002).

      B.     Rhodes, Murray, and Illegal Sentences

      In support of its argument that Derosier should be estopped from

complaining about his plea-bargained judgment, the State, like the trial court did

in its conclusions of law, relies in part on the court of criminal appeals’s decisions

in Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App. 2007) and Murray v. State,

302 S.W.3d 874 (Tex. Crim. App. 2009).

      In Rhodes, the court faced the question of whether a defendant who

entered a plea agreement involving multiple charges and corresponding

sentences could later argue that his plea was void because under the code of

criminal procedure, the trial court was not authorized to assess his sentences to

run concurrently. 240 S.W.3d at 890. In short, Rhodes “received a judgment

that was illegally lenient by having his sentence run concurrently instead of

consecutively.”   Id.   The Rhodes court held that Rhodes was estopped from

attacking this judgment through a writ of habeas corpus because “he agreed to

the concurrent sentencing provision, then through his own conduct [of not directly

appealing the decision] he helped procure and benefit from the illegality.” Id. But

Rhodes is inapplicable to the facts of this case.

      In Rhodes, there was no question that the trial court possessed subject-

matter jurisdiction over the judgment resulting from Rhodes’s plea.         The trial


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court’s failure was that it had entered an “illegally lenient sentence.” Id. at 890.

An illegal sentence is a sentence that is “outside the maximum or minimum range

of punishment . . ., unauthorized by law[,] and therefore illegal.” Mizell v. State,

119 S.W.3d 804, 806 (Tex. Crim. App. 2003).         Illegal sentences are curable

defects and do not involve a court’s jurisdiction. Rhodes, 240 S.W.3d at 888.

Indeed, as the court of criminal appeals has stated, “There has never been

anything in Texas law that prevented any court with jurisdiction over a criminal

case from noticing and correcting an illegal sentence.” Mizell, 119 S.W.3d at 806

(second emphasis added). Moreover, the Rhodes court specifically stated that

the only exceptions to the estoppel or “invited error” doctrine that applied to

Rhodes’s judgment were “challenges to the subject-matter jurisdiction of the

court rendering the judgment.”     Rhodes, 240 S.W.3d at 891.         In summary,

Rhodes did not involve the trial court’s subject-matter jurisdiction, and there is

nothing in Rhodes to suggest that estoppel-like doctrines apply when a court

does not have subject-matter jurisdiction over a bargained-for judgment.

      Murray also involved an “illegally lenient sentence,” but unlike the

defendant in Rhodes, Murray was not barred from challenging the illegal

sentence because he had procedurally perfected his challenge to the judgment

when he “assigned a reason” for withdrawing his plea prior to the entry of

judgment. Murray, 302 S.W.3d at 883. In coming to its conclusion that the

State’s estoppel claims failed, the Murray court assumed, “without deciding, that

the State [was] not barred by a subject[-]matter jurisdiction defect.” Id. at 882.


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Like in Rhodes, there is nothing in Murray to suggest that estoppel-like doctrines

apply when a court lacks subject-matter jurisdiction over the bargained-for

judgment.

       Accordingly, the trial court and the State’s reliance upon Rhodes and

Murray is misplaced. This case does not involve an illegal sentence; it involves a

judgment that is void because the trial court lacked jurisdiction to enter judgment.

See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001) (“The void

judgment exception recognizes that there are some rare situations in which a trial

court’s judgment is accorded no respect due to a complete lack of power to

render the judgment in question.”); see also In re Leonard, 402 S.W.3d 421, 423

(Tex. App.—Fort Worth 2013, orig. proceeding [mand. conditionally granted])

(“Estoppel, however, cannot apply if the trial court had no subject[-]matter

jurisdiction.”).

       C.     Ex parte Sledge

       In its conclusions of law, the trial court also concluded that the “Court of

Criminal Appeals has held that there are instances where judgments that are

void may not be attacked through a writ.” Ex parte Sledge, 391 S.W.3d 104,

107–08 (Tex. Crim. App. 2013). The State relies on a similar premise in its

briefing to this court. But Sledge is also not applicable to the facts of this case.

In Sledge, the court of criminal appeals held that a writ applicant’s claim that the

trial court’s order revoking his deferred adjudication community supervision was

void for lack of subject-matter jurisdiction was not cognizable on successive


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habeas corpus review. Id. The Sledge court reasoned that because the claim

did not fit within any of the statutory exceptions to the prohibition against

successive writs and because the applicant had not brought his jurisdictional

claim in his original post-conviction application for writ of habeas corpus, the

court of criminal appeals itself was statutorily barred from reviewing the claim. Id.

      The Sledge court, however, discussed at length that “jurisdictional claims

are cognizable in post-conviction habeas corpus proceedings.”            Id. at 108.

Specifically to claims regarding a convicting court’s jurisdiction, the Sledge court

stated,

      It is, of course, axiomatic in our case law that review of
      jurisdictional claims are cognizable in post-conviction habeas
      corpus proceedings. Moreover, we have recognized them to be
      cognizable without regard to ordinary notions of procedural
      default—essentially because it is simply not optional with the
      parties to agree to confer subject[-]matter jurisdiction on a
      convicting court where that jurisdiction is lacking. Therefore, unless
      and until such time as the Legislature might say otherwise, in
      exercise of its constitutional authority to regulate post-conviction
      writ procedure, a meritorious claim of truly jurisdictional dimension
      will “always” be subject to vindication in an original post-conviction
      application for writ of habeas corpus. We do not mean here to say
      otherwise.

Id. (footnotes omitted). Thus, the trial court’s reliance, and the State’s reliance

now, on Sledge is misplaced because it is not disputed in this case that Derosier

brought his subject-matter jurisdictional claim in his original post-conviction

application for writ of habeas corpus.




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       D.    Ex parte Heilman

       One of the cases heavily relied upon by the State is Ex parte Heilman.

456 S.W.3d 159 (Tex. Crim. App. 2015).          In Heilman, the court of criminal

appeals held that it would no longer recognize a distinction between limitations

defenses that are “based in facts” versus those that are “pure law.” Id. at 161–

62. Prior to Heilman, Texas jurisprudence treated limitation defenses based on

facts as Marin category-three rights and limitation defenses based on pure law as

Marin category-one rights. See id.; see also Marin v. State, 851 S.W.2d 275, 278

(Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d

262, 264 (Tex. Crim. App. 1997).        The appreciable difference is that Marin

category-three rights are subject to forfeiture, and Marin category-one rights are

“absolute requirements.”    Marin, 851 S.W.2d at 279. One such Marin category-

one right is subject-matter jurisdiction. Id. Until Heilman, limitation defenses

based on pure law were treated as jurisdictional issues. 456 S.W.3d at 162.

       The State asks this court to interpret Heilman as standing for the

proposition that “protecting good-faith, arm’s length plea agreements” trumps

subject-matter jurisdiction. But Heilman does not suggest anything of the sort.

Heilman stands for the proposition that there is no ex post facto violation by

treating all limitation defenses as “Marin category-three forfeitable rights.” Id. at

169.

       Heilman actually works against the State’s position in this case. Heilman

explicitly states that “estoppel does not apply when [a] court lack[s] jurisdiction.”


                                         9
Id. at 167. Further, Heilman explains that a “limitations defense standing alone is

merely a procedural ‘act of grace’ by the legislature that can be forfeited,” but

when a “trial court lack[s] jurisdiction . . . no conviction [is] possible.” Id. at 168.

We conclude that Heilman does not support the trial court’s denial of Derosier’s

application, nor does it support the State’s position that Derosier is estopped

from bringing his application.

      E.     Precedent

      The State also relies on a myriad of cases, including fragments from

concurrences and dissents from court of criminal appeals’s opinions as well as

opinions from other state courts, and asks this court to read the tea leaves

regarding how the Texas Court of Criminal Appeals will, in the future, address the

issue of when an applicant benefits from an agreed-to judgment but later

challenges the convicting court’s subject-matter jurisdiction in a writ of habeas

corpus. See Hall v. State, 225 S.W.3d 524, 537–38 (Tex. Crim. App. 2007)

(Keller, P.J., dissenting) (discussing the doctrine of “beneficial acquiescence”);

see also People v. Vera, 122 Cal. App. 4th 970, 982–83 (2004) (holding

defendant who pleaded no contest to felony battery estopped from challenging

trial court’s authority to strike five-year enhancements where court struck the

enhancements pursuant to plea agreement). In short, the State asks this court to

preemptively overrule the Texas Court of Criminal Appeals’s longstanding

holding that “it is simply not optional with the parties to agree to confer subject-

matter jurisdiction on a convicting court where that jurisdiction is lacking. Sledge,


                                          10
391 S.W.3d at 108. We decline the State’s invitation to usurp the role of the

Texas Court of Criminal Appeals. See Sierra v. State, 157 S.W.3d 52, 60 (Tex.

App.—Fort Worth 2004) (op. on reh’g) (stating that this court “is bound by the

precedent of the Texas Court of Criminal Appeals and has no authority to

disregard or overrule” it), aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007).

      F.     The State’s Remaining Arguments

      In the remainder of its briefing, the State argues that Derosier was not

harmed by his plea, or that he otherwise waived his complaint about the trial

court’s judgment, and thus this court should affirm the trial court’s denial of his

application. But subject-matter jurisdiction is not a question of harm; rather, it is

a question regarding a trial court’s ability to act. Roberts, 940 S.W.2d at 657. It

is not a question of the parties’ conduct that can confer upon a court an authority

that does not exist; instead, a lack of subject-matter jurisdiction concerns a

court’s complete lack of power to render the judgment in question. See Nix, 65

S.W.3d at 668 (“A void judgment is a ‘nullity’ and can be attacked at any time.”).

As the court of criminal appeals stated in Sledge, “a meritorious claim of truly

jurisdictional dimension will ‘always’ be subject to vindication in an original post-

conviction application for writ of habeas corpus.” Sledge, 391 S.W.3d at 108

(citing Ex parte Davis, 947 S.W.2d 216, 223–24 (Tex. Crim. App. 1996)). This is

the very type of claim that Derosier has brought, and the State and trial court

both agree that the trial court lacked jurisdiction to enter judgment predicated on

a charge of terroristic threat.


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                                 IV. CONCLUSION

      We hold that the trial court abused its discretion by denying Derosier’s

application for writ of habeas corpus because the trial court did not have subject-

matter jurisdiction over the agreed-to charge and therefore the judgment is void.

Accordingly, we sustain Derosier’s sole point, we reverse the trial court’s

judgment denying Derosier’s application, and we remand this case back to that

court for proceedings consistent with this opinion.




                                                      /s/ Bill Meier
                                                      BILL MEIER
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 29, 2015




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