                        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<l into a plea agreement with
DISTRICT AITORNEY; CATTIBRINE LI'JFT;                                         ttre St¡rte wherein [*21 he pleadcd no contest to
CHIEF, APPELLATE DIVISION¡ /LARA                                              the misdemcanor offense of tôrror:istic threaP in
TOMLIN, MA|THEW SHOVLIN, ANTIIOI'IY                                           exchange for the Staûe dismissing the indecency
PAUL, ASST. CRIMINAL                                  DIS,TRICT               charges. Pursuant to the plea bargain, Derosier
ATTORNEYS,                     FOR DENTON              COUNTT                 reccivcd one day in jai.l with one day's credit.
DENTON¡ TEXAS.                                                                Thus, Derosier dicl ¡rot serve any additional timc
                                                                               iil jail nor any type of community superviision.
Judges: PANEL: LIVINGSTON, C,J.; MBIER                                        Derosier claims, hoWevcr, that hs súffer's the
and SUDDERTH, JJ.                                                              collatsl¿l consequcnces from this rnisdemcanor
                                                                               conviction of being unable to procure gaintul
 Opinion by: BILL.MEIER                                                        cmployment. SeeTatunv. State,846 S.W.2d 324,
                                                                               327 (Tcx. Crim. App. 1993) ("il1f a misdemeunor
 Opinion                                                                      judgmcnt is void, and its existence may have
                                                                               det¡imentnl collaleral consequences in some future
MEMORANDTjM OPINIONI                                                           proceeding, it mây bc collaterally a[lackcd,
                                                                                whether or not a ternt of probation wts
 [.   INtRonuc'r¡o,.*                                                           successfully servecl out.").

 |    ó'e¡ Tcx, 1ì.   App,   l>,   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'<rr
l.his hatreas proceeding, prior to his plea, the (rial judgrnerrt is void ancl thc trial cour:|. shoulcl have
court properly adrnonished Derosier concer:ning         granted lris application, Thc Statc rloes not clisputc
his rights antl thc conset¡rrenccs of' his plca,        that the trial court lackcd subject-mattcr
Derosier and his attor.ttey signed the plea            jurisdiol"ion over the nlisdemeanor charge tlrat
agreement along with clther paperwork, including        Dcrosier pleadcd no confest to.3 Insteacl, the State
  lt3l a waiver of his right to a jury ¿rnd iltc        asserts numerous cstoppel theories as to why the
tourt's Adrnonitjorr of ,Statutor:y and trinl courJ ctid not abuse its discretion by derrying
Constitutional R.ights ancJ Def'onclant's Derosier' s application.
Acknowlcdgment." Derosicr clid not object to thc
trial courtrs jruisdiction prior to entering his plea. A, Standard of Review and Jurisdicfion
Tþelvc years aftcr ent,ering his plca, Derosier We revisw a trial courl's denial of tlts relief
ñled in the trial court this original application for rcquestcd in an apptication f'.br a writ of habeas
writ of habeas corpus, al.leging that the trial court corpus [t5] under an abuse of discrstion standard.
lacked subject-matter jurisdiction ovcr the See Kniatt u, Stale,206 S.\ry,3d 657, 664 (Tex.
misdemcanor oflense of terroristic threal The Crim. AppJ, cert, dcnied,549 U.S.. 1052,ln S,
trinì court:denied rolief.                              CL 667, t66 L. Frl. 2d 514 (2006)i,Ex parte
                                                        Mello, 355 S.\t/.3d 827, 832,(Iex. App:-Fof:
In tho Fial cou¡t's conclusions of law'rclating to tilorth 2011, pet. refd); Ex porte Karlson,282
i[s denial, the uiaì court concluded that cven S;V/.3ô ,118, ln (tex. App.-Fort Woith 20(Þ,
though the plea-bargained judgment was "void," pets. reFd): This meÐns that we view thc rccord in
Dcroíisr was nót entitlcd to collaterally attack the the light most f,avorable to the tial court's r,uling
judgmont iSicause'he had "gnjoyed fho benefits of
                                                         and afford grcat def,cr-ence to its findings and
 an ágrec.d judgment prescrìbing a too-leirisnt conclusions, espècially when they involve
punishment.'In gúþporr of its dccision, the trial cletonninations of credibility and demeanor. M.ello,
 courf. cited fo numcrous Texas Court of Criminal 355 Sj\ry.3d at 832.'A ùial court, however,'has no
Appeals decisionn that the trial court interpretcd discrotio¡i in determining. what 'the law is <¡r
 as standing for the proposition that '/therc n¡e applying tlre law tô the facts, /n rc HÍnterlong,
 instancos where judgments that arc voicl mEy not 109 S.W.3d 61.1, 621 (Tox. App.-Fort Worth
be attacked through a ¡,rit." Uttimatel.y, the lrial 2003, orig. proceeding
                                                                                    [mand, denicd]) (op. on
 court cpncluded,that Derosier wa^s "cstopped fror¡r reh'g).
 ggmplaining about the ¡rlea agreement that he
 agr.eed tcl, anrl received the ¡*4¡ bencfit of the
                                                         tt is axioi'natic that subject+nattcr jurisdicfion
                                                         cannot be confer,rerl by ngreemei:t of the paflies;
 bargain from." This appeal fbllowed.
                                                         jurisdietion must be vested in a court by
                                                          constitution or ståtute. See Stale v. Robet'ts, 94Q
 II[. Dscusslon
                                                                         S.W.2cl 655, 657 (Tex. Crim. App. 1996)
In one point, Derosier argues that lte trial court                       ("[S]ubject matter jurisdiction cannot be conferred
abused its discretion by denying his application                         by ngreement of the pârties; jurisdiction must bc
for writ of habeas corpus because the trial court                        vested Ín a court by constitution clr sfatute."),
laokccl subjc<;t-rnaltcr juriscliction ovcÍ the                          overruled on other groundt by State v. Medrnno,
misdemcanor charge he pleaclcd no contest to,                            67 S.W.3d 892,894 (Tcx. Crim. App.2002).

\    Sce Puent¿ v, Stile,7l S.W3d 340, 343 (-l'cx. C'.rirn. App. 2002) ("4 disnict court hus juri.sdìcl.ion ovcr fclony offcnses, lt docs rot
hnvc originnl jurisdiclion ovcr miscle.rrrc¡utor clrnryes. cxcept thosc involving officinl rniscronduct.f, (trxrtnoles ornittcd) Thc Slatc, lhc
triirl r:ourt, i¡nd f)crosier ull agrrc thtt thc trinl court lucked sulrject-nrntlcr jurisdiction over tbe plcn-burgaincd-for.iudgntcnl.
                                                                                                                       Pagc 3 of 6
                                          2015 Tcx. App. LEXIS I1155,                     +5



B, Rhodes, Murrtq, aud lllegal Sentences                      ll9   S.W.3d at 806 (second emphasis addecl)'
                                                              Moreover, tlte Rlndes court specificnlly statecl
In support olliLs ar:gunenI        Dcrosicr shoulcl be
                              th¿ì|.                          that the only excepl"ions to the cstoppcl or'¿invited
estoppecl f.rom cotrlplaining abottt                his       orrer" doctrinc thal. applicd to Rhodes's judgment
plea-bargained judgrncnl, tùc Stalc, like the trial           were "cha,l lenges to the s ubject-matter iurisdiction
court did in it:s conclusions of law, rclics in part olr      of the courf rcndering the judgment." Rlwdes,240
the court otcrimina,l appeals's decisions tn Rhodes           S.V/.3d at 891, In surnmary, Rhodes did nol
v. State,240 S.1vV.3cl 882 (Tex. Cri¡n. App. 2007)            i           (rial cour[' s subject-matter j urisdiction,
                                                                  nv oì ve the
 rntl Mu,rray v. Slatc,302 S,V/'3d 874 (Tex. Cri¡n.           and there is notlring in Rhodes fo suggest that
App.2009).                                                    esloppcl-like doctdnc.s apply when a coutt dotx
                court faced the qucstion of whether
                                                              no[ have subject-rnatter jurisdiction oYcr                         ¿r
ln   Rhod.es, the
                                                              bargained -for j ud gmen L
a defendant who cntered a plea agreement
involving [t6] urultiple charges and corresponding            Mu:rray also involved on tllegatly lcnisnt
sentences could later argue that his plea was void.           sentence," but unlike the defendant it Rhodcs,
because undcr the code of crimin¿l procedurc, the             Munay was not barrËd from challenging the
ttial court was not authorìzsd to ilssqss his                 illegal sentence because hc had procedurally
senûences to ri¡n concurrenily. 240 S.W.3d at 890-                perfecûed his challenge to the judgmeht wheit he
In shorg Rhode's "tpccived a judgment that was                    "assignetl a reason" for withdrawing his pleÍl prioi
 illegally lcnisttt by having his sentenco run                    to the entry of judgment. Murray,302,'S.W3d at
 concurrently instead of, consecutively." /d The                  883. In coming to its conclusion that'the Süato's
  Rhodes court held that Rhodes \ilas qstopped from               cstoppel èlaims fai ted:,' tho Murrøy court'assumed,
 attackin$ this judgmont through a writ of haboa^s                'wi.thout deciding, that the State [was] not bar¡ed
'colpl¡s' bccause "he agreed to ths concurrtnt                     by a subjcct[-]matÉer jurisdiction dclbct." Id. al:
lsentÞncing provisi.on, then through his own                       882. Like in itftod¿,r', there is nothing [+El in
 oonduct [of not directly appealing the decision] he              Murrøy to suggest that cstoppel'like doct¡ines
 helped procure and.benetit,from thc i¡.lle9ality-" Id.           åpply whcn                    a court lecks 'subject-matter
  But Rhodes is inaþplicabte 'to the facts of this                j'uri   sd   i   cti   on over thc bnrgainul-foi jud gmon t'
 c88e.
                                                                  Accordingl.y, the lrial court and tlte State's reliance
 lì.n Rþdes, there was no question that the lrial                 upon Rhodes rnd Murray is misplaced' This case
 court possessed subject-mattor jttrisdiction over                does not involve an   illegal sentencc; it involves a
 tho juclgmenl" resulting lionr Rh<¡des's plea. The               jurlgrnent that ís void because the Fial court
 trial court's failure was thnt il had entered an
                                                                                                             'See
                                                                   lacked jurisdiction to enter judgment.         Nix v.
 "illegally lenient scntcnce." /d. at 890. An illegal             state,ós s.Tv,3d 664,'667 (Tex, Crim. App.2001)
 sentencc is a sentcnce that is "ouüside the                      ("Th" void judgmont exception' recognizes that
 maximum or mi¡r.inrunr rilìge uf pun:ishmônt - - -,              there are som'e rare situations in which a triaì
 unauthorizecl by 'law[,] ancl the.rcfore ilìegal."               court's judgmcnt is accortled no respcct due to a
 Mìzetl'v. state, 119 s.w.3d 804, 806 (Tcx' Crim.                 complctc lack of power to render the judgment in
 App. 2003). Illegal se¡rtences are curable defects               question."); see also ln re L-¿ona.rd, 402 S.W.3d
 anrJ do not involve a court's jurisdiction- Rhndes,               421, 423 (Tcx. App.-Fott tJ/orth 20'13, orig.
  240 S.W.3d at S88, Indeccl, t¡s the sourt of'                   procceding Imand. conditionally granted])
 crimin¿rl appeals ha.s statccl, [+71 "There lras never           ("Estoppel, however, cannot appìy if the trial
 bcen anything in Tcxas law thal. prevcnted azy                   court. hâd no subject[-.lmat,tel jucisdiction.).
 court with jurisdictíon over a critninnl case flronr
 ncrticirrg and con'ectirrg an illcgal serttcncc-" Miz'ell,        C. E¡ pørle Sledge
                                                                                                      Pr,rgc   4 of 6
                                       2015 Tcx. App. LEXIS I I l-55, +8


In its conclusions of law, the aiul oourt ¿ilso                vindication in an original post-conviotion
concludcd that the "Court oI Crirninal Appeals has             appfication for writ cll'habeas corplls. We do
held that there are instanccs whers juclgnrents that,          not mean herc t() say otherwise.
arc v<licl rn¿¡y not be tttacked through a writ." Er
pørte Sledge,3gl S.W3ct 104, 1.07-08 (Iex. Crim.         /r/. (f'ootnotes omitted). Thus, the trial ceurt's
App. 2013). The State rclies on a similar premise        rcìiancc, ancl the Slale's reliance now, on Sledgeis
in ils bricfing to this court. But SIedge is also no1    rnisplaoed because it is not tlisputed in this case
applicable to the facts of this case. In ^Sledge, tlre   that Dcrosier brought his subject-matter
court of crirninal appeals hcld that a writ              jurisclictional claim in his origina.l post-convicf.ion
applicanl's clairn that the trial coutt's [*9] order      applical-ion l'ot writ of habcas cor?us.
revoking his deferred adjudication comrnunity
supcrvision was void for lack of subject-malter          D. Ex parte Heilann
jurisdiction .wa.s not cognizable on successive
habea¡ cor¡us review. Id. Tbe Sledg¿ court               One of the cases heavily rtlied upon by tho Statc
roasoned,that because tle claim did not:fit within       is Exparte Heilman.4-56 S'W.3d 159 (tex. Crim.
 any of fhe statuþry ex.ceptions to the prohibition      App. 2015). In Heilnun, fhe court of criminql
 agains[ suocgssivE writs and because the applicant      appeals held thut it would no longer recognize a
 had,not brought his..iurisdictional claim in his        distinction between limitations defenses that a¡e
 original pnst-conviction application for wríf of        "based in factlt vorsus those that a-nc "purc law.'
 haÞeas cglpus, thc coqrf of criminal appçals itself     Id^ at l,6l-62, Prior to Heilman,                     Texas
                                                         jurisprudence trcated limitation defenses based on
 was statutorily barred ffom rcviewf¡¡g the claim.
td-                                            ,
                                                         facfs as Martn catogory-three rights and limilation
                                                          defenses based on pure law as M¿rin catcgory'one
The.Slødge. court, howeve¡ discussed at ,length        ldlsee aLso Marinv. Støte,8-51 S.try.2d
                                                         d,ghts. See
that turisdictionaì olaims are cognizablc in 275;ZllE ([cx, Crim. App. 7993\, overtuled on
                'h¿beas
postjconvicfion           corpus procealing s," ld.      other grounds by Cain      t          S,W.%1262,
                                                                                         Stnten Ð47
al I08, Specifically to       claims regardi¡g       &   264 (Iex. Crim. App. t997). Th" apprcciable
convicting court's jurisdiction, the Sledge court        differsnce is th¿t Marin catcgory-three rights are
stated,                                                       [*11]    zubject   fo     forfeiture, and Marin
                                                         category-one righüs are "absolute rcquirencnts."
    It is, of course, axiomatic in our case law that     Marin, 851 S.V[.2d at 279. One suctt Marín
    review of jurisdictional claims are cognizablc       category-one right is subject-matter juri'ßdiction.
    in post-con vìcti on habeas corpus proceedin gs.     /d. Until Heilman,limitation defenses based on
    Moreover, we have rccognizrd them to be              pure law were treatecl as juri.stlicfiori¿rl issues. 456
    cognizablc without regard to ordinary notions        S.W.3d a¡. 162.
    of procedural detault+ssentially bepause ,it
    is simply not optional with the parlje.s to âgree     Thc State asks this court to :interprct Heilman ¿us
     to confer subjcct[-]mafter jurìsdiotion on a         standing for the propos;ition l.hat "protecting
    convicting courC whe.re lhat juri.sdicl"ion is        goocl-t'aith, ârm's length plea agreements" trumps
     lacking. Therefore, [#1.0] unlcss and until stlch    subject-mattcr.jurisdiction. But Heìlnnn docs not
     tinre as the l,egislature might say otherwise, in    suggest any(hing ol'thc sot'l,, Heilmør¡ stands lbr
     exercise of its colrstitu[ional autfrority to        tlre proposition that there is no e..r po.ri, focto
    regulatc posl-conviction wril. procedure, a           viol¡rtion hy trcal.ing all limilation dcf'enscs us
     rncritoriclus cl¡lim o[ lruly julisclictional        "Mnrin category-three f'orl'citable rights." Id. at
     climension will "always" be subjcct to               I   69.
                                                                                                       Pagc 5 of 6
                                         2015 Tcx, App. LEXIS I I l-55, { I I


 Heilmcmrictually works rìÉt¡Iinsf thc Stale's position     thal l"his oourt [*13] "is bountl by the prcccclent of
in this case. H.eilntcn explicitly stotes that "estoppel    the Texas Cou¡:t of Cri¡ninal Appeals ancl has no
cloes not apply when [n] courl lack[s] jurisdiclion'"       author:ity to disregarcl or overrule" il), affd,2l8
Id. at 16?. Further, Heilnrun         cxplains that a       S.V/.3d 85 (Tex. Crim, ApP. 2007).
"limitations clefcnse stancling alone is merely a
                                                                                        Arguments
proccduraì 'act of gracc' hy the lcgislaturc that R The State's Renraining
can be lbrfeitecl," hut when a "Lria,|l court lack[s] In the remainder of its briefìng, the State argues
jurisdiction . . . no conviction [is] possible-" Id. al that DerosieÍ was not harmecl by his plea, or that
 168. We conclude th'¿t Heilman rlnes not support hc otherwíse waived his complaint about the trial
 the trial court's deniat of Derosier's application, court's judgment, and thus this courl should
 nor <loes it support the Sfate's posiúon that atTinn the trial court's denial of his application.
 Derosier is estopped from brjnging his application. But subject-matter jurisdiction is not a question of
   F12I                                                  harm; rather, it is a quastion regarding a trial
                                                         court's nbiliry [o act. Roherts,940 S'V/,2d at 657.
 E, Precedent                                            It is not a questÍon o[ thc parlics' conduct thaf can
                                                                  upon a court an authority that does not
 The S¡aæ also rclies on a myriad of cases, confcr
                                                                instcacl, a lock of subject-matær jurisdicti.on
 including fragments frorn concrlrrencos and exist;
                                                         conccrns a court's cornplete lack of power to
 dlsssnts f¡o¡n court clf criminal appoals's opinions
                                                         render the judgment in question. J¿¿                 65
  as welt as opinions fmm c¡lhcr state coufs, and                                                      ^/¿r,
                                                         S.Vf.3d at668 ("4 void     judgmentis  a'nullity'  and
  asks this court to read the tea leaves rcgardíng
                                                         can be attackcd at any tinro."). As ttre court of
  how the Texas Cou¡t of Crirninal Appeals will, in.
                                                          cniminaì appeals statcd in Sledge, "a meritorious
  lhe.future, addrcss the issue of wbcn an applicant
                                                          claim of tdy jurisdictional dimcnsion will
  beneñts trom an agreed-to judgmenf. but latcr
                                                          'always' be subject to vindication in an oríginal'
  challenge,r the convicting court's subject-matter
                                                          post-conviction application for writ of habeas
  jurÍsdiction in a writ of habeas corpus. See Hall v.
                                                          corpus." Sledge, 391 S,W.3d at 108 (citing Ex
   state,225 S.lV.3d 524,537-38 (Tex. Crim. App.
                                                          parle Dav i s, 947 S. W.2 d 21 6, 223'24 (lìex. Crim.
   2W7) (Keller, PJ., dìssentìng) (discussing the
                                                          App. 1996)). This is the very type of claim that
   rloctrine of 'teneficial acquiescence"); see also
                                                          Derosisr has brouglrt, and the St¿tc and trial court
   People v. Vera, 122 Ctl. App, 4th 970, 982-83' l8
                                                          both agree that tlre lrial courl lacked jurisdiction
   Cal. Rptr. 3d 896 QOO4) (holding defendant who
                                                                  to cnter judgment predicÂted on a charge of
   plcaderl no contcst to felony battcry cstoppcd [114]
                                                           teroristic threat.
   from challengÍng trial court's authority to strike
   five-year: cnhanccments wherc courf struck the
                                                           IV. Cc¡ncr.uston
   enl¡anccments pursuant to pleâ agrcement). In
   short, Lhe State ¿rsks this court to prcernplively V/e hol.d that the trial cÒurt. abused its cliscrction
   overrulc the Tcxas Cor¡rt of Crintinal Appeals's by denying Derc¡sier's application for writ c¡f
                                                                                                            have
    longstanding holding that "it is simply not optional hal¡eru corpus because thc trial court di<l not
    with the parties to agree to confer subject-nratter subject-matter jurisdiction over the agreed'to
   juris<liction on ¿¡ convic[ing oourt wherc that charge ancl thcrelbre thc judgment is void-
   juris<liction is lackÍng. Slwlge,39l S.VV.3d at 108. Accorctingly, we sustain Dcrosier's sole Po¡nt, we
    'Wc decline the State's invitation to usurp the role
                                                            reverse thc trial court's -iudgment denying
    of lhe Texas Court ol Criltrinal Appeals. See Derclsicr's rlpplication, and wc remanct this case
    Sierru v. Slule, 157 S.W..3d 52, 60 (Tex. back to that court lbr procceclings consistent with
     App.-Ftrrl Wc¡¡th 2004) (o¡t. on reh'g) (stating [his opirtiort.
                                                                                      Pnge 6   of   6
                           2015 Tex. App, I,EXIS I I l5-5,   'È14



/s/ Bill Meier                               DO NOT PUBLISH
BILL MEIER
                                             Tex. R. App. P. 47.2(h)
JUSTICE
PANEL: LMNCSTON,   C.JI;   MEIER ancl DELIVERED:                    Octobsr 29,2015
ST]DDERTH, JJ.
