Gutierrez, Maricela Rodriguez

consciously trying Perhaps the it good Court would be a idea to amend 606(b) widespread, widely and criti- Rule curtail the allow courts to consider ”28 cized, practice ‘trying jury.’ juror of Pro- affidavits testimony ju- about a (all Goode, Wellborn, ror’s Internet research and her report fessors and Sharlot of jurors. that research back to three of whom had been on the Liaison other But 606(b) amended, rules), formally until Rule that drafted the we Committee are free that, informally. not to do so explain Supreme Court had “retained malleable ‘extraneous preju- I respectfully dissent. exception, lawyers dicial information’ still have had a strong would incentive to jurors

contact after a verdict was ren- Indeed, precisely

dered.”29 what

happened criminal cases when this vague amorphous Court enacted its Rodriguez GUTIERREZ, Maricela 606(b) exception to Rule It 1986.30 was Appellant very reason that this Court adopted Supreme version Court’s of The STATE Texas. 606(b) Having adopted Rule in 1998.31 rule, Supreme Court’s version of the No. PD-1658-11. ought its change meaning not and content Appeals Court Criminal of Texas. (1) court, consulting

without first Oct. changing wording of the rule to explicitly incorporate exception the federal prejudicial

for “extraneous information.” during Id. its deliberations and then it contains exception jurors may testify that states that Id. anything validity toas relevant to the exception completely verdict. That swal- 606(b) 30. Rule of the Texas Rules of Criminal lowed the rule and “was source of much Evidence read as follows: confusion[.]” (b) Inquiry Validity Into of Verdict or In- 15, 606.3, supra § note at 193 al., 31. Goode et dictment (2001 ("New 606(b) Supp.) changes Rule dra Upon inquiry validity into the a ver- matically jurors may the extent to which testi indictment, juror may testify dict or not fy concerning validity of a criminal ver any occurring as to matter or statement Presumably, dict or indictment.... the Court during jury’s the course of the deliberations Appeals align of Criminal decided to criminal anything upon any or to the effect of his or practice practice.”); with civil see Hines v. juror's other mind or emotions as influenc- (Tex.App.-Texarkana ing him to assent to or dissent from the ref’d) ("[T]he pet. rule in civil cases is concerning verdict or indictment or jurors may now the rule in criminal cases: therewith, processes mental in connection testify only any to whether outside influence juror except may testify any as to brought upon juror.”); was S.P., to bear In re validity matter relevant to the the verdict (Tex.App.-San An or indictment. Nor his affidavit or pet.) (noting tonio that courts any evidence of statement him concern- criminal cases should look to civil cases for ing pre- a matter about which he would be guidance on what constitutes an "outside in testifying cluded from be received for these fluence"; jury’s purposes. discussion about the thick file, ness of defendant’s which was deceptively This rule was worded and inter- evidence, First, nally contradictory. prohibits it introduced into was not an influence”). jurors testifying occurring from matter "outside Huggler,

James W. Tyler, for Appellant. Aaron Bingham, S. Atty., Asst. District Tyler, McMinn, Lisa Attorney, C. State’s Austin, for State.

OPINION PRICE, J., delivered the opinion of the MEYERS, WOMACK, Court in which JOHNSON, KEASLER, HERVEY, COCHRAN, ALCALA, JJ., joined. The trial court revoked the community supervision because she failed comply with a required condition that her either legal to obtain status to remain country in this within twelve months or else “leave the country and reside in a location have legally [she does] where appellant authorized status.” The failed to object to this condition at the time it was and, fact, imposed requested twice extension of the time her allotted for comply with it before the State filed its motion to revoke. The Texarkana Court Appeals nevertheless reversed the trial order, holding court’s revocation that the community supervision condition that she leave the “could not be enforced” prerogative because it invaded the government whether to decide illegal immigrants remove from the United granted petition States.1 We the State’s (Tex. 2011). App.-Texarkana Gutierrez written The record does in fact contain a discretionary review in order to exam- condition, above memorialization of the holding.2 now affirm. ine this We appellant judge signed by both hearing, day sentencing as the on the same AND FACTS PROCEDURAL addition, May 12th. In the written terms POSTURE “At appellant: conditions informed the In the Trial Court (12) months from the the end of twelve was indicted for the of- The you not ob- probation begins, date have in an amount possession fense of of cocaine legal status from the [United tained grams, than four and less than 200 greater En- Immigration Bureau of and Customs to a degree felony.3 Pursuant second County, within Smith being for forcement] guilty agreement, appellant pled the plea Texas, country leave the you must May April 2004. On to this offense you do have a reside in a location where 12, 2004, ap- the trial court sentenced the legally Although status.” these authorized years’ in the pellant to ten confinement not, all record re- conditions were for the sentence, the suspended but penitentiary veals, part plea agree- integral community supervision her on for placing parties, appellant ment the the voiced rec- years in accordance with the ten objection —all to them. keeping of the State in with ommendation years, of the next six at Over the course parties. reached the plea agreement the the trial court request, the appellant’s community

As one of the conditions of period the allotted of time twice extended in the trial court announced supervision, originally granted appellant that it had the it open court that was May legal to “obtain status” —first until you your that file for going also to order (three years day after the through the De- appropriate legal status originally imposed), then condition was Security, or partment of Homeland (three years after again May until that in agency whichever extension). of the first On expiration the you that charge days. of that these And 19, 2010, July the State filed a motion to days that within 90 of this date and do appellant’s community supervi- revoke the you provide your proba- notice to that revocation, for grounds sion. As that, proof you tion officer in that 12, 2010, that, May appel- as of alleged in and done that. up have fact followed (1) provided proof lant neither to her had they fast act on You can’t control how applied officer that she had for application, but processing their status, country. nor left the No legal you get can it filed. promptly alleged. revocation was other basis for hearing on the appellant The trial court also informed the The trial court conducted of State’s motion to revoke on December copy that she would receive a written community hearing, At outset of the the terms and of her conditions alleged first basis for before left the courtroom. State abandoned the supervision she 66.3(a), (b) (c). upon a of that condition. Garcia v. P. & At least one violation Tex.R.App. held, 08-03-00296-CR, appeals in an other court of has albeit WL No. unpublished opinion, Paso, fail- defendant’s (Tex.App.-El delivered June community object to a condition of ure to 2005) (not designated publication). Honduras, supervision that he must remain in country, his native for the duration of his 481.102(3)(D) §§ Safety Code 3. Tex. Health & probationary period a forfeiture of constituted 481.115(d). & any appellate complaint based to revocation revocation, aliens, only illegal in electing proceed violation of the Supremacy appellant that the had failed to Clause of the allegation Constitution.5 that, country. Represented by differ- The State acknowledged leave the consistent Hernandez, the trial court plea proceed- ent counsel than at the initial lacked the to order the ings appellant pled true to that leave country, but Speth countered with complain violation. At no time did she State,6 in which we later held that com- probationary she plaints about a condition of community objectionable leave the was to her supervision ordinarily are procedurally de- any way. The trial court ordered that faulted for purposes not first the appellant’s supervision be Indeed, raised the trial court. very exclusively revoked on the basis of her claim that attempted to raise for the leave country. failure to It then re- first time on appeal from his duced the sentence to five revocation proceeding apparently the trial years’ confinement in the en- penitentiary, court the authority impose lacked sev- judgment accordingly, tered and certified eral of the conditions about which he com- the appellant’s right appeal. to

plained.7 But the in Hernandez Appeals In the Court of object did not at the trial court level ei- ther, Court, yet holding any and this appeal, For the first time on appel the probation that encroaches complained lant that the trial court erred upon the federal government’s monopoly in revoking community supervision her “void,” upon deportation matters of alien the basis of a violation of the condition that nevertheless the overturned revocation of she leave the should she fail to probation making any refer- —without timely legal obtain status. On the authori procedural ence to default.8 ty of this in opinion Court’s Hernandez v. State,4 appellant argued the that the favor, sole Ruling in the the court upon community condition which her su appeals of declared that “we do not believe pervision was revoked was invalid because that Speth mutually and Hernandez are it impinged upon government’s the federal appeals exclusive.”9 The court of rea- power regulate exclusive to the removal of soned: (Tex.Crim.App.1981) (opin- (Tex.App.-Houston

4. 613 S.W.2d 287 S.W.2d [14th reh’g). 1998) (hereinafter, (sustain- ion on I") “Speth Dist.] ing Speth’s points second and fifth error of VI, Constitution, ("This U.S. Const. art. cl. complaining that conditions of . and the Laws of the United States which shall were, alia, law”). inter "unauthorized be made in Pursuance thereof ... shall be the circumstance, From this Professors Dix and Land; supreme Judges Law of the and the Schmolesky import have deduced the of our every thereby, any Thing State shall be bound holding Speth categorically—that to "a be— in the Constitution or Laws of State to the complaint of [a su- Contrary notwithstanding.”). pervision] is must be raised in unauthorized (he (Tex.Crim.App.1999) 6. 6 S.W.3d 530 George the trial court.” E. Dix & John M. reina fter, ”). “Speth II Schmolesky, 43A Texas Practice: Criminal 53:148, (3rd § at 1172 Practice and Procedure itself, explicitly say Speth 7. We did not inso ed.2011). that, upon but we did observe in the cases relied, Speth appellants per which were Hernandez, supra, at 290. mitted to raise the issue of unauthorized sen appeal, tences for the first time on and it was Gutierrez,supra, at 6. distinguished. Speth, these cases that we su pra, Speth at 531-32. See also Speth is invalid. According Speth, to can contract Hernandez [one] essentially for, by, reiterated that and be bound unconstitutional relationship contractual between court community supervision, of conditions defendant, “and conditions thereof being described such conditions are terms contract entered into of the object as a “defect.” Failure to court between the trial court and defen in waiver of the But results defect. who benefits from dant.” “A defendant says the trial had no Hernandez court probation, privilege the contractual According to do what it did. power sys not involve granting of which does condition, Hernandez, the unlawful one right prohibition, complain temic must employ, court had no objectiona at trial conditions he finds could was void and thus not be enforced. maintains, Thus, ble.” issues not merely The condition is unreason- non, respect validity, with vel able, merely it does not violate a community supervision conditions of do not It right constitutional defendant. n implicate of absolute require the kind authority of the violates the exclusive rights prohibitions ments that are so absolutely of America States United optional” “not fundamental as to be to, immigration banishment control parties the rubric of Marin v. under from, the States. The condition United Therefore, concludes the State.14 Supremacy violated the itself Clause community supervision even a condition of Constitution.10 that is unauthorized must be raised appeals reversed The court therefore court predicate trial as a re revoking appel- the trial court’s order the a lief. Hernandez was decided number of community supervision, concluding lant’s years Speth, proce before and the issue of void, the that “the condition and that expressly dural default was addressed revocation, solely premised appel- on [the there, decided; much less under these cir condition, violation of that cannot lant’s] insists, cumstances, Speth the State should stand.”11 control. Discretionary On Review Second, event, the State con and review, discretionary tinues, In its brief on should be estopped challenges appeals’s State now court of from the unauthorized complaining of con what amounts to holding grounds. on two on Because appeal. dition su First, argues, the ap pervision relationship, the State court of a contractual peals’s may agree purported prospective probationer distinction between Thus, thought system at 7. be Id. our to con- (1) tain kinds: rules of three distinct abso- 11. Id. (2) requirements prohibitions; lute rights litigants imple- be of which must II, supra, at 534. See McDonald also by system expressly mented unless (Tex.Crim.App. waived; litigants rights which (“This 1969) consistently Court has held that implemented upon request. are to In be grants probation, where the trial court context, present important the most relationship proba the court between thing nature[.]”). about the Texas law remember contractual in tioner is procedural only applies is that it default 13. Id. category. the last Id. 1993). (Tex.Crim.App. Marin, In we summarized: by “by entry abide an unauthorized condition into the United States is not such the contractual entering relationship area[,]” into declared the conditions objection[.]”15 proba without When the Hernandez’s were incapable reaps tioner the benefits of contractu of supporting revocation.19 Although Her- relationship, estopped al he should be from nandez does not speak explicitly to .the subsequently complaining about the unau question agent whether a state may order appeal, thorized condition on under Rhodes alien, the deportation of an there can be v. State.16 The of estop- Rhodes doctrine little doubt that for a judge state-court pel by apply, contract should unilaterally to do so “violates the principle argues, though even the trial court was process the removal is entrusted to absolutely prohibited by Supremacy the discretion of the Federal Govern- imposing from imping Clause “[djecisions ment[,]” and that of this na- ing upon government’s depor the federal ture touch foreign relations” and cannot prerogative. tation-decision constitutionally be made individual agencies state they because “must ANALYSIS made with one voice.”20The State accord-

Hernandez State: Deportation ingly concedes that the convicting court in and Banishment this case lacked to order the Hernandez, In appellant out country.

felony probation was revoked for a viola If Hernandez any objection made tion of the condition that he remain in invalid conditions of at the trial Mexico and “not re-enter the legal U.S.A. level, opinions court our original sub ly illegally prior permis without written rehearing mission and in Hernandez failed sion of’ the trial court.17 This Court ac to mention it. preceded Hernandez Ma cepted as accurate the State’s assertion years. rin a dozen It is therefore actually Hernandez left understandable that we explicit made no for Mexico of own volition and turned determination complaint whether a about the question to whether the condition that purported state action that preempted is he remain there return to the by federal law under the Supremacy States, legally illegally, only with per Clause of United States Constitution mission of convicting court was an inaction, may be forfeited may be ex invasion of the exclusive of the waived, pressly implicates or instead a government regulate immigrat systemic requirement prohibition, Observing ion.18 that “there are areas of relating optional parties, law with the that be vin activities aliens which wholly preempted appeal the states are not dicated on even absent a trial ob law,” by federal we held that jection “the matter or in the face of an express waive II, Speth supra, at proposition 534. 19. Id. at 290. For this we relied 15. principally upon Takahashi v. Fish & Game (Tex.Crim.App. 16. See 240 S.W.3d 891 Comm’n, 410, 419, 334 U.S. 68 S.Ct. 2007) contract). (discussing estoppel by Davidowitz, L.Ed. 1478 and Hines v. 52, 62-63, 312 U.S. 61 S.Ct. L.Ed. Hernandez, supra, (opinion origi- at on (1941). submission). nal States,-U.S.-, (opinion 18. Id. at 289 v. United State's motion for Arizona 2492, 2506-07, (2012). reh'g). S.Ct. 183 L.Ed.2d 351 deferred-adjudication proba- placed r.21 with the charged He was later tion.26 rehearing in concurring opinion on In a Al- indecency with a child.27 offense of Hernandez, asserted that Judge Roberts the inde- though jury acquitted Speth also violated the conditions of I, the trial court nevertheless cency charge, of the Texas Consti- Article Section provision expressly and un- tution.22 This guilty him of the adjudicate proceeded the banishment of prohibits equivocally offense based on aggravated assault In a from the State.23 criminal offenders support the State to proffered facts case, in an earlier concurring opinion Speth on indecency charge, placed similarly argued that a Judge Roberts had As a condition of that regular probation.28 required Speth required, was in- regular probation, re- to Mexico and probationer to return offender, alia, register as a sex ter “literally requires transporta- main there testing, pay polygraph to and for submit of the Texas plain “is a violation tion” and victims of the counseling for for the pay majority Like the in Her- Constitution.”24 offense, from indecency and refrain alleged nandez, however, ex- Judge Roberts never girls for the duration of contact with minor plain such a opinion whether pressed Speth chal- probationary period.29 appeal vindicated on ab- violation could be alia, as, inter un- lenged these conditions in the trial court. timely objection sent jury’s in view of the verdict authorized however, asserts, that we The State now indecency charge.30 him of the acquitting com- Speth later determined a condition of su- plaint objected about had not to these Although Speth default, pervision subject procedural court, in the trial the court conditions the asserted basis for its invalidi- whatever invalid.31 held each of them to be appeals Speth we concede that ty. Although review, discretionary for petition In its categorical interpreta- susceptible to this argued Speth procedur- had tion,25 opinion reject reading ally complaints defaulted his today. by failing to assert them the

purposes Speth v. State: Procedural Default? by invoking countered Speth trial court.32 held eases in which this Court has a line of Speth convicted of offense that is not authorized punishment officer and aggravated peace assault of a I, 14; II, Marin, supra, supra, Speth at supra, (distinguishing at at 278-79 21. See forfeitable, that are waiver- claims 531. optional only, which are "not and those cannot, therefore, by be waived or forfeited 14-15; II, I, supra, Speth supra, Speth at at 28. parties”). 531. Hernandez, J., (Roberts, supra, con- 22. at 290 15; II, I, supra, Speth supra, Speth at 29. at curring). 1. 531 n. I, ("No person § art. 20 23. See Const, Tex. any transported shall be out of the State II, Speth supra, at 30. 531. same.”). within the offense committed 18; II, I, Speth supra, Speth supra, at 31. at State, 688, (Tex. 690 24. 608 S.W.2d Reza 531. J., 1980) (Roberts, concurring). Crim.App. 7, 25. ante. See note II, Speth supra, at 32. 531. 14; II, I, supra, Speth supra, Speth at at

26.

175 time, any at by may challenged system, law be absolute feature of the option- not ap- time on including for first parties, al with the way direct the same cases, line of howev- peal.33 We found this manifestly sentence that is outside the er, First, “inapposite.”34 pointed to be we statutorily applicable range punishment community supervision out that is “not a does.38 part sentence or even a of a sentence.”35 critically, But we that the more observed We are not Speth inclined to read requirement that a defendant be sentenced so categorically as to hold that a defen statutorily applicable, range within the may complain dant not for the first time punishment is an “absolute and nonwaiva- appeal of a condition of probation system ble” feature of the within the Ma- which violates an absolute prohibition as rubric, rin the contravention of which can envisioned Marin. This is not to say contrast, any By be raised at time.36 that a defendant not many, will forfeit grant eligible decision whether to an de- most, appellate complaints not most —even highly discretionary, fendant constitutional complaints particu —about judicial as is the determination what lar conditions of community supervision “may” imposed conditions of be trial, failing object at or that he will appropriate protect as “to or restore the effectively any waive constitutional or victim, community, protect or restore the statutory waiver-only right might rehabilitate, punish, or reform the de- 37 by a community violated condition of su broadly fendant.” Within this discretion- pervision agreed he has to follow in his scheme, ary explained, assessment contractual relationship of a with the trial particular su- pervision ordinarily implicate will not an court.39 agree But he cannot to submit to State, ("Because Speth Id. had cited: Heath v. 38. See Id. at 534 11 Section [of (Tex.Crim.App.1991) broadly discretionary, Article (opin 42.12] S.W.2d 335-336 so it submission); State, narrowly does not establish a original identifiable ion on Hern v. punishments applicable 894, 'universe of (Tex.Crim.App.1994); 892 S.W.2d statutory offense' in the same manner as the Johnson, parte Ex 697 S.W.2d sentencing schemes at issue” in the line of (Tex. 1985); State, Crim.App. and Wilson v. invoked) (quoting parte cases that Ex (Tex.Crim.App.1984). 677 S.W.2d Johnson, 607). supra, at Rich, parte See also Ex 194 S.W.3d (claim (Tex.Crim.App.2006) & n. 3 that sen- State, See, e.g., Belt v. 127 S.W.3d time, tence is void be raised at (court (Tex.App.-Fort pet.) Worth including post-conviction proceedings); habeas appeals refused to reach the merits of due- 806 & Mizell n. 6 challenge particular process conditions of (“A (Tex.Crim.App.2003) appel trial or community supervision because not raised be jurisdiction late court which otherwise has low, though it did reach the of non- merits may always over a criminal conviction notice challenges constitutional * * * illegal correct sentence. There properly preserved by objection); had trial anything has never been in Texas law that (Tex.App.- Hart v. prevented any jurisdiction court with over a ref'd) pet. (complaint Eastland that con noticing correcting criminal case from community supervision dition of encroached sentence.”). illegal upon right the constitutional to religion preserved free exercise of not for II, supra, at 532. 34. appeal); Little v. 220- 2012) (due (Tex.App.-Fort process Worth Id. 35. challenge supplemental to condition of com munity preserved appeal supervision not for Id. at 532-33 & n. 5. 36. appellant complain when the failed to about it Id. at 533 (citing years preceding for the three State's motion Tex.Code Crim. Proc. art. 42.12, revoke). 11(a)). § to Constitution, not that Section of the Texas community supervision a condition of system simply waiver-only finds justice the criminal in terms of a forfeitable or therefore, by defi- intolerable and which is prohibi- of a but as a flat right litigant, nition, option not even an available to the against acceptable banishment as an tion — parties. for the of a crime. punishment commission short, may no more In a state trial court implicitly That what we held leave the order a convicted defendant to in to the condition of Hernandez may it him with a sen- punish State than jus antithetical to the aims of the be —so beyond statutorily appli- the tence intolerable, a to be system tice as whole as range punishment. Although we cable therefore, subject agreement by not comparison illegal-sen- to the rejected the The trial court in this case parties. the respect tence line of cases with to order the clearly lacked particular conditions of deroga to leave the Speth, apt were in issue in we think it is an preemption the federal over mat tion of analogy in the context of a condi- Moreover, enough deportation.40 as involving ters that both out, supervision tion of Judge pointed Roberts has prerogative, invades a federal violation trial court to do so violated constitu I, Clause, violates an expressed by Supremacy tional Article of the stricture — (ICJ) Relying upon opinion parte Me tional Court of Justice's construction of our Ex dellin, (Tex.Crim. treaty argued construction that he —a App.2006), binding by the State asserts that "this Court was on Texas virtue of Su- Medellin, recently Supremacy premacy supra, held that at one has least Clause. at 330. Following claim not involve absolute Clause-based does the lead of the United States Su- Court, however, rights subject preme or nonwaivable and is to the we held that the ICJ's procedural binding default.” State's Brief at treaty rules construction of the was not by suggest States, If Supreme this means and that appeal a claim raised for the first time on the Vienna Con- Court’s own construction of necessarily regarded should not as "involv signatory apply vention would allow a state to ing” systemic requirement prohibition procedural default in its doctrines of assess- right simply because the federal constitutional validity ing the of a claimed violation of con- applicable it invokes has been declared rights treaty. under the terms of the Id. sular Clause, through Supremacy then we states (citing Oregon, at 332 Sanchez-Llamas observed, readily agree. already As we have 355-57, U.S. S.Ct. rights are in fact most constitutional short, (2006)). L.Ed.2d 557 In we did not subject to either waiver or forfeiture. See "Supremacy hold in Medellin that a Clause- note ante. That an claim has its Rather, may based claim” be forfeited. roots in the federal constitution does not that Medellin mistaken assert that held alone determine its status under the Marin Supremacy implicated, Clause was even token, categories. by But the same we have given interpretation that the ICJ’s of the trea- held, any opinion, not in Medellin or in other control, ty and that there- did Texas was appeal that a claim time raised for the first statutory fore free to exercise abuse of the its regarded invoking systemic never be as doctrine, notwithstanding writ the ICJ’s rul- requirement prohibition under Marin when Texas, ing. U.S. See Medellin Supremacy it Clause. is based on the 504-06, 128 S.Ct. 170 L.Ed.2d 190 (2008) ("not event, obligations all international law inapposite. In Medellin itself is automatically binding constitute federal law apply Medellin for Texas to its claimed that statutory enforceable in United States courts” virtue prevent doctrine to abuse-of-the-writ Clause, Supremacy claiming, and terms of the him from for the first time in a post-conviction application for writ Vienna Convention as construed the ICJ successive corpus, rights domestically in the ab- of habeas that his under the were not enforceable legislative self-executing treaty Vienna Convention on Consular Relations had sence of a or implementation). been violated would violate the Interna- itself unqualified state constitutional of her explicit and contract with the place trial court to prohibition. expressly We now hold what her on community supervision in exchange merely implied, namely, Hernandez promise for her to abide prescribed community supervision conditions, the appellant should now be effectively operates to a deport probation- estopped complaining from of particular a er prohibition violates absolute and is condition. ordinary

therefore not subject principles We do not think that either es- procedural of waiver or default. toppel doctrine applicable is here. With respect contract, to estoppel by that doc Estoppel? Rhodes v. State: trine does not apply when the relevant Even if Hernandez identified an abso- terms of the contract are unenforceable on prohibition lute within the rubric of Ma- grounds public of policy. rin, argues, it should make no An important exception to the rule [of difference to our of disposition appel- estoppel by usually that is rec- contract] lant’s case. The argument basis for this that, ognized is where the contract from this recognition, derives Court’s against public void as policy against State, Saldano v. that under some circum- express law, person mandate of the a stances, the doctrine of can estoppel trump who accepted has a benefit thereunder even of category Marin’s non-forfeita- will not be estopped defending from requirements absolute ble/non-waivable against the contract sought when it is prohibitions.41 And in Rhodes be against enforced him or her.45 species estoppel identified two of that we (Second) Looking to the Restatement described as “close cousins” of one anoth- Contracts, Williams, in State v. this Court estoppel by judgment, er: and estoppel acknowledged that “[e]nforcement of some types contract.42 These of estoppel, we precluded contracts be ground observed, apply nullify any would kind public policy.”46 particular The Re- systemic except breakdown for a lack of (Second) statement provision we invoked subject jurisdiction.43 matter We ulti- in Williams reads: mately held in Rhodes that defendant “[a] (1) promise A agree- or other term of an enjoyed who agreed has benefits of an ment grounds unenforceable on judgment prescribing punish- too-lenient public policy legislation provides ment should not be permitted to collateral- it is unenforceable or the interest in its ly judgment attack that aon later date on clearly outweighed enforcement is in the the basis of the illegal leniency.”44 The by public policy against circumstances that, argues State now because the trial the enforcement of such terms. subject court had jurisdiction matter place supervi- weighing In the interest in the en- sion, appellant enjoyed term, the benefit forcement of a account is taken of (Tex.Crim. 41. 70 S.W.3d 888 & n. 69 Id. at 892. ("We App.2002) party may have held that a estopped relying require from on an absolute Estoppel § 45. 31 C.J.S. and Waiver at ment.”) (citing Prystash 3 S.W.3d 522 (2008). Yount, (Tex.Crim.App.1999) and State v. (Tex.Crim.App.1993)). S.W.2d 6 Williams, 46. State v. Rhodes, supra, (Tex.Crim. 1997). at 891. App. Id. it, interest to

(a) special public and no enforce justified expectations, parties’ By con- served its enforcement. be (b) would result if any forfeiture that trast, three of the four criteria at least denied, were and enforcement clearly are militating against enforcement (c) in the any public interest special policy strength The present. term. particular enforcement deriving profound, enforcement is against against weighing public policy In overriding both from an federal as it does term, taken of a account is enforcement maintaining cen- constitutional interest involving over all matters tralized control (a) policy as man- strength unequivocal and an state con- deportation judicial by legislation ifested deci- banishment prohibition against stitutional sions, to crime.48 Re- acceptable response as an (b) refusal to en- the likelihood that a clearly fur- to enforce the condition fusal policy, further that force the term will and state respective thers these (c) any misconduct the seriousness of And while we have no doubt policies. the extent to which it involved and deliberately set out the trial court did not deliberate, and community super- to fashion a condition of (d) the directness of the connection vision that would violate these federal and the between misconduct the con- imperatives, state constitutional term.47 offending condition nection between the criteria, to us Applying apparent these it is federal and state constitutional any agreement appellant that the undeniably On bal- violations is direct. re- with the trial court with have reached ance, estoppel by we do not think contract was unenforcea- spect deportation to her apply. should ble, subject estoppel therefore not by contract. by judgment, for estoppel As consid public-policy addition to the above

Considering might first the factors that erations, enforcement, courts in justifi- appellate no we note that perceive favor that, consistently held before by either Texas have expectations able of enforcement court, may apply, no forfeiture that doctrine the State or the trial acceptance judgment of the benefits of the the State or the trial court that either view, the voluntary.49 In our suffer on account of the failure to must would (Second) not to constitute volun § 178 duress has been held 47. Restatement of Contracts is, therefore, (1981). tary acceptance excep Haggard applied in tion to the rule Carle." “ 374, 3(a), 'leg- Haggard, (Tex.Civ.App.- 550 S.W.2d 48. Under Section subsection alia, writ) (citing, inter Chero ... in the broadest sense to Dallas islation' used States, 174 Ct.Cl. by body kee Nation v. United include fixed text enacted rules, (Ct.Cl. 1966), in which promulgate including not 355 F.2d id.., statutes, attorney's acceptance of reduced award of only but constitutions...." See (a). judgment, attorneys had in court's where Comment fees debilitating financial burden on ac incurred Texas, representation, did not block general count of the 49. The rule in "based on the originally-agreed- estoppel[,J” if an effort to restore principle of is that fees). upon v. TexasCommerce voluntarily accepted the of a See also Smith “has benefits Christi, N.A., Bank-Corpus judgment, prosecute an he cannot afterward Carle, (Tex.App.-Corpus writ de Christi appeal Carle v. 149 Tex. therefrom.” nied) ("If 469, 472, (Tex.1950). compel a economic circumstances benefits, voluntary party accept there is no "[ajcceptance financial But of benefits due to

179 appellant’s acceptance circumstances, of the trial court’s Under these we do not ultra vires condition of think super- appellant’s acquiescence to wholly voluntary. vision was not Counsel the condition of community supervision for the informed the trial court that she leave the country constitutes an hearing at the revocation the appel- “acceptance” sufficient to trigger the doc- lant her provided husband the sole of estoppel by judgment. trine children, support financial for their four

two of CONCLUSION special relating whom “have needs” syndrome. Obviously, to Down’s she had reasons, For these we affirm judg- every accept any contingency incentive to ment of the court of appeals. having

that would rule out her to serve COCHRAN, J., penitentiary Judge time. filed a concurring Womack has JOHNSON, opinion J., in which pointed “[p]robation may joined. out that be im- posed on a defendant who does not wish KELLER, P.J., concurred in the result. more, What a defendant ordi- it[J”50 narily say no has the trial court’s deci- OPINION sion regarding appropriate conditions COCHRAN, J., filed a concurring of community supervision. What those JOHNSON, J., opinion which joined. conditions will be is not a product nego- tiation; a defendant I agree majority with the appli- simply shoes must take them or leave cant’s cannot be revoked on the them if she wants to avoid incarceration. illegal1 probation basis of an condition that it, acceptance acquiescence judgment, or in the not recommend and defendant was not it). estoppel apply.”); and the doctrine does not "desirous” of 886, (Tex. Rogers Rogers, v. 806 S.W.2d 889 1991, writ) ("The App.-Corpus gen Christi no judge 1. Let us not mince words. The trial did party may voluntarily eral rule is that a legal authority power not have the to im- accept judgment the benefits aof and attack it pose deportation probation. as a condition of * n * are, appeal at the same time. There and, illegal That was an condition like an however, exceptions to this rule. For exam sentence, illegal may be raised at time. ple, compel par if economic State, circumstances 287, See v. 613 S.W.2d Hernandez benefits, ty accept voluntary there is no see, (Tex.Crim.App.1981) (op. reh'g); e.g., acceptance acquiescence judgment, in the Phommachanh, United States v. 91 F.3d estoppel apply.”); doctrine does not (10th Cir.1996) (collecting cases and Mead, McCartney v. 541 S.W.2d holding that federal law "does not authorize a (Tex.Civ.App.-Houston [1st Dist.] deport district court to a defendant-alien as a writ) ("An exception estoppel by judg [to release, supervised but that it ment] also exist where financial duress instead impose authorizes a district court to compels involuntary acceptance supervised as a condition of release that a benefits.”). judgment's deporta defendant be delivered to the INS for proceedings Immigra tion consistent II, (Womack, J., supra, (INA)”); at 536 con tion and Naturalization Act State, Abushaar, curring) (citing (3d Roberson 852 S.W.2d 761 F.2d 959-61 1985) (Tex.Crim.App.1993)); (ordering Rickels v. Cir. a defendant leave (Tex.Crim.App. as a is an 2003) (Womack, J., concurring). deportation; judges See also order of state and federal (Tex. Ivey v. 52 n. 52 do not have the to enter such (trial order); Nava, Crim.App.2009) may impose court com Commonwealth v. 966 A.2d munity supervision, (trial statutorily where (Pa.Super.2009) judge's author or so, though ized to do illegal even defendant had der that alien remove himself from the go jury punishment, elected jury parole did state as a condition of was itself “ille- judge’s comply pro- could to with the trial “self-deport” she could not success-

she timely and year. prop- bation condition when she fully legal status within one obtain legal erly papers requesting filed her sta- have think that issue could I also She for the tus. cannot be revoked failure simpler Ap- in a manner. been resolved Department Security of the of Homeland pellant’s community supervision cannot be act promptly. to failing legal to obtain status to revoked for country Supreme certain The United States Court has in this within a remain that it “fundamental held violates fairness” obtaining legal because status period time Amendment to power her to control. She can under Fourteenth re- beyond a for papers probation file the voke defendant’s failure to appropriate to ordered a fine absent pay within time or restitution evidence legal to status a certain obtain frame; he for that responsible that act is within her control. The was failure— 1.e., fine, money pay made condi- he had the to but judge properly trial that act a willfully with so.2 Based probation. Applicant complied upon declined to do tion of correctly Supreme reasoning, trial judge The Court’s numerous condition. and have held at the time he her on state federal courts applicant placed told be revoked when he community supervision, probationer may “You can’t control not [employees comply probation of the is unable to a condi- Department how fast Security] act on tion because of external circumstances that process- Homeland their you beyond have so application, promptly but can are his control.3 We held ing get Appellant everything unpublished did she in an opinion.4 it filed.” ity deportation, gal” to order [the defendants'] and therefore stricken from an otherwise and Antonio-Antimo, People provision judgment); pro- v. therefor a condition of [as valid 298, (Colo.2000) ("neither stricken.”) (citation omitted); 29 P.3d 302-03 bation] must be 440, State, 490, authority ju Rojas Md.App. nor state courts have v. 450 52 A.2d matters, (trial immigration judge (Md.Ct.Spec.App.1982) over includ 492 lacked risdiction defendant, alien, person deported”; authority ing to order a a resident to order therefore, illegal appellate self-deport oppose deportation court would excise to a as self-depor probation probation). condition that called condition for uphold plea the rest of the bar tation and 809, 660, 668-69, gain); Ga.App. Georgia, v. 234 508 2. Bearden v. 461 U.S. Sanchez (1983) ("[I]f ("Ordering 221 187 a defen 103 S.Ct. 76 L.Ed.2d S.E.2d country probationer as dant to leave a condition of has made all reasonable ef- restitution, probation deporta pay yet to constitutes order of forts the fine or and tion”; own, illegal judge through do it is for a state trial to cannot no fault of his it is so probation fundamentally probation an order a make such condition of unfair to revoke au- probationer failing considering tomatically and to revoke a to self- whether without ade- object proba quate punishing to deport; defendant's failure alternative methods available.”). or revocation be tion condition was excused defendant are seriously cause would affect the fairness ”[i]t See, Cervantes, judicial system e.g., integrity People v. 175 and to allow an Cal. (Cal.Ct. stand.”); illegal App.4th Cal.Rptr.3d and unauthorized sentence to 858 Pando, ("Where App.2009) probationer v. 122 N.M. P.2d a is unable State (N.M.Ct.App.1996) (ordering comply probation defen with a condition be beyond to leave the United and remain cause of his or her dant circumstances control conduct was not outside as and defendant's con banishment; tumacious, illegal revoking probation imposing court was error.”); illegal prison re reversible State v. could sever condition from term are Askew, valid); (N.C.Ct.App. which mainder of sentence Torros S.E.2d 2012) (trial (Fla.Dist.Ct.App. its discretion 415 So.2d court abused curiam) 1982) revoking ("[Djeportation probation for (per is a feder defendant's reasons control; beyond matter. The trial court thus had author- defendant demonstrated al Normally, probationer’s it is the burden plead prove comply that he cannot

with the conditions of because case, beyond factors his control. In this GROSS, Appellant Jimmie however, pleading proof such is unnec- (as essary the written because

opposed judge’s to the trial accurate oral The STATE of Texas. statement) shows on its face that “obtain- ing” legal Security status from Homeland No. PD-1688-11. (or year any specific length within one time) beyond appellant’s control. This saying, you

is like “If aren’t accepted at Appeals Court Criminal of Texas. School, you go Harvard Medical will to prison.” legitimate A of proba- be,

tion might apply ‘You must to Harvard 10, School,” beyond Medical but it Oct. as- piring physician’s control to ensure that accept

Harvard will that applicant.

Because did everything she comply

could to with her probation condi-

tions, judge the trial could not properly

revoke her probation based on her failure legal

to “obtain” within year. status comments, join

With these I majority

opinion. 1197, housing that he was unable to obtain (noting suitable A.2d 1201-02 that com jail); before his release from see also United pliance "may conditions Boswell, 171, (5th States v. 605 F.2d 173-75 control”); put beyond probationer’s Hug Cir.1979) (failure pay to make restitution 790, 403, gett v. 83 Wis.2d 266 N.W.2d ments); Taylor, v. 321 F.2d (1978) (cautioning judges trial that "con 339, (4th Cir.1963) (failure 340-41 pay to ditioning probation on the satisfaction of re fines); Romero, 106, People v. 192 Colo. quirements beyond probation which are 1101, (1976) (failure P.2d pay 1101-02 probationer's er's control undermines Silcott, fees); attorney’s People v. 177 Colo. responsibility” impermissible; sense of and is 451, 835, (1972) (failure 494 P.2d 836-37 remanding case to trial court to determine child-support payments); make Donneil probationer capacity pay whether lacked (Fla.Dist.Ct.App. 377 So.2d restitution). 1979) (failure complete drug-rehabilitation Nakamura, program); State v. 59 Haw. AP-75311, parte Capetillo, 4. Ex No. 2005 WL (1978) (failure 581 P.2d 761-63 to be 14, 2005) (Tex.Crim.App. *1 Dec. accepted drug-treatment pro residential (probationer's community supervision was Moretti, gram); N.J.Super. State v. improperly revoked since his failure to 810, 813-14, attend (1958) (failure 141 A.2d complete pro substance-abuse treatment gainful employment); People to obtain Bowman, gram, probation, beyond as condition of 73 A.D.2d 423 N.Y.S.2d control; (1980) (failure prevented doing psychiatric to obtain he was from so treatment); Bubar, detainer). State v. 146 Vt. INS

Case Details

Case Name: Gutierrez, Maricela Rodriguez

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 10, 2012

Citation: 380 S.W.3d 167

Docket Number: PD-1658-11

Court Abbreviation: Tex. Crim. App.