Rhodes v. State

adjudication guilt prohibited. So un- 42.12, 5(b),

der Article challenge Section trial judge’s competency determina-

tion constitutes attack on

judge’s adjudicate guilt determination to appealed.

and therefore cannot be A de-

fendant, however, is not left without

opportunity to a challenge seek relief-such

may be application post- raised corpus.43

conviction writ of habeas

Terry RHODES, Appellant STATE Texas. PD-1597-05,

Nos. PD-1598-

05, PD-1599-05.

Court of Criminal Appeals of Texas.

Nov.

Rehearing Denied Dec. Davis, (Cochran, J., lenge voluntariness of or her concurring); Cooper 52.2(b) see also though prohibits habeas even Rule (Tex.Crim.App.2001) (stating appeal). such a claim on direct plea-bargaining chal-

I. BACKGROUND A. Trial Appellant serving prison was time for (three burglary years) aggravated and sex- (forty-five years). ual assault He was County bench-warranted Smith to an- for swer a theft in the offense. While jail, County escaped. Smith he was He ultimately convicted on both the theft and escape charges. He was sentenced to two years jail in state for the theft and ten years prison escape. for escape The sentence was ordered to be run concur- rently with the theft sentence. writ- The judgment escape ten for the conviction is escape silent as to whether the sentence concurrently consecutively to run or was appellant’s prior aggra- with burglary and vated sexual assault sentences. writ- This judgment ten concerning also silent agree- a plea not there was ment.

Appellant later committed more crimes ultimately with charged and new felo- ny escape, burglary offenses of of a habi- Gatewood, Kelly Huntsville, Appel- for tation, alleged and theft. The State two lant. judgments prior of conviction for enhance- Amarillo, Paul, Mayo, Melinda Matthew purposes.1 prior judg- ment One those Austin, Atty., State’s for State. County escape ments was for the Smith Appellant quash case. filed a motion to KELLER, P.J., the opinion delivered Relying enhancement allegation. KEASLER, HERVEY, the Court which upon Article 42.08 of the Code of Criminal COCHRAN, JJ., HOLCOMB and joined. Procedure, claimed the judgment he must determine whether a void escape defen- was because the sentence was may collaterally prior judg- concurrently dant attack a run with other sentences ment conviction used to enhance a new when the statute it be cumu- offense, offense, in the trial of that new burglary lated the earlier and sexual ground prior judgment serving assault sentences he was at the too hold escape.2 lenient. We that he cannot. time committed the serving 12.42(d). the sentence he was at the 1. See Tex. time of § Pen.Code offense, judge shall order sentence for 42.08(b) provides: 2. Article "If a subsequent offense to commence immedi- sentenced for an offense committed while the ately completion defendant was an inmate in the institutional original offense.” Department division of the Texas of Criminal completed Justice and the defendant has not sexual as- prior aggravated to fence for presented responses three The State (1) 42.08(b) sault,4 failure to stack it found that the Article did appellant’s claim: escape judgment to be void thus require judgment rendered actually appellant purposes.5 was not As stacked because for enhancement unusable system the time of the prison “in” the result, reversed escape, since he had been bench-warranted and remanded of the trial court judgment (2) County jail. Even if the the Smith hearing.6 punishment for a new the case stacked, had to be the absence judgment rehearing, a motion filed did not stacking make the mak- and original argument its repeating corrected deficiency and the could be void (1) following arguments: additional ing the (3) Equitable pro in a nunc tunc order. for en- can be valid a conviction justice prevent the defen- notions of if the sentence purposes even hancement gaining the of concur- dant from benefit (2) void, had trial court no evidence sentencing turning around and then rent met the criteria appellant it that before complain about it later. (3) 42.08(b), appellant in Article outlined mo- appellant’s The trial court denied punishment obtained bargained for the tion, allegations the enhancement were complain of action he cannot now and true, subsequently appel- found to be and (4) a cumulation requested, earlier and offender lant was sentenced as an habitual Appel- part not of the sentence. order is offenses, sentences receiving on all three response a to the State’s motion. lant filed twenty-five years, thirty-three years, (3) above, ap- responding argument In twenty-five years, respectively. “did enter acknowledged that he pellant plea for his sentence in the bargain into a Appeal B. County escape case” but claimed Smith point ap In his sole error error as he did not “invite” the peal, appellant re-urged his contention rehearing for was de- result. The motion County judgment was escape the Smith nied. response, re-urged In void. request- En was also banc consideration argument had trial.3 The first it made at 42.08(b) dissenting an opinion denied. In ed but appeals court found that Article consideration, of en banc Smith from the denial required that the sentence for the cumulation County escape Keyes argued be stacked onto sen- Justice State, Long v. 931 S.W.2d found that the State of law. 3.The that, 1996). Fullbright its (Tex.Crim.App. conceded in brief under (Tex.Crim.App. 818 S.W.2d 1991), failing erred in “if the trial court appellant serving time for both 4. Because sentence, County escape stack the Smith aggravated as- burglary and the sexual rely upon that conviction to enhance cannot escape, Article sault offenses at the time of Rhodes’s convictions that are escape be required 42.08 sentence to here.” Rhodes v. longer sentence for the stacked on the much (Tex.App.-Houston Dist.] In its [1st aggravated because sexual assault conviction brief, said, the State “The State does to terminate. See Basden it would be the last disagree Appellant on nature of with the 897 S.W.2d 319 pur the law as to the use of convictions Fullbright poses stated in of enhancements as Rhodes, 175 S.W.3d at 350-55. We are uncertain that this conces v. State.” expansive as is as the court of sion event, it, but in we are has characterized party's concession on matter not bound sentence, part order of a so its order a consecutively sentence to run as (4) required by 42.08(b), absence could not render a sentence void.7 Article what amount of evidence is to invoke Discretionary mandatory provisions C. Review Article 42.08(b).8 petition review, In discretionary issues,

the State raises several can arguing In estoppel question, (1) as summarized appellant follows: the State claims that entered appellant estopped complaining agreement into for his sentence (2) that his was illegal, County whether a Smith escape charge. brief, rights defendant’s constitutional response appellant would be contends pro violated a nunc tunc order there no evidence prove record to would make the sentences run consecutive- that his conviction was the result (3) ly, what legal is the effect of a failure to agreement.9 Our review of the rec- J., (Keyes, dissenting appeals. 356-59 from the court of Volosen v. consideration). denial of en banc Judge holding Price contends that Volosens grounds 8. The State's fol- for review are as prior holdings is inconsistent with in Rochelle lows: (Tex.Crim.App.1990), 791 S.W.2d 121 First: This Court needs decide to whether a (Tex. and Sotelo v. 913 S.W.2d 507 estopped complain- defendant can be Crim.App.1995), and he contends the that ing capable rendering about an error of a holdings in those latter cases would bar our judgment or sentence void. disposition the of current case. But Rochelle Second: This Court to decide needs wheth- because, estopped distinguishable er a defendant can be Sotelo are in from com- cases, benefits, plaining, petitioner’s enjoyed ground its after that both the for review illegal challenge any holding his sentence was or void did not because of the court of statutory was below the minimum. appeals, present the while Volosen and case Third: This Court needs decide whether grounds challenge holding to involve that do of rights a defendant’s constitutional are vio- appeals, for not ad the court of but reasons lated when a trial court corrects a clerical by appellate dressed the lower court. by changing error a concurrent sentence to Rochelle, proce- In the State advanced a statutorily mandatory sen- consecutive ground dural default for review that did not years begun tence the after defendant has to holding challenge appeals’s the court of serve the sentence. fatally the indictment was defective. 791 Fourth: This Court the needs determine Sotelo, defen- S.W.2d at legal effect order of the failure to a sentence pun- dant’s claim that a remand for a new 42.08(b) consecutively by to run as ordered hearing jeopardy ishment violated double of the Texas Code Criminal Procedure. principles challenge not a to the court of practical Fifth: This Court needs to make appeals’s holding that the trial court had er- question review the of what amount roneously quashed the enhancement State’s evidence is invoke mandato- allegations. By S.W.2d at 508-09. con- 42.08(b). ry provisions of Article trast, Volosen, grounds in re- the State’s ap- directly challenged view the court of argument Appellant’s response in main legally peals’s holding that the evidence was brief is that the State review its forfeited support insufficient to the defendant’s con- failing current claims raise them viction because the had estab- original appeals. to the court of submission though lished a defense as a matter of Arguably, ground the State's fifth review law— argument supporting the State’s chal- arguments present an extension of the it did lenge original ap- had not been considered the court submission to the court of Nevertheless, appeals. peals. Similarly, pre- 227 S.W.3d at 79-80. because case, trial, present arguments vailed at we ad- in the we con- our discretion arguments subsidiary support today respond directly dress sider to the court of presented ruling appeals's holding prior trial court’s that were not conviction II. ANALYSIS in the there present ord case reveals the parties indeed no indication that to treat need not decide whether We agreement involving plea trial this as plea agreement. into a case entered sentencing the concurrent respect reporter’s no court record record contains if no there was explain, issue. As we shall light plea papers might have shed concurrent sentenc- plea agreement on the existed, plea agreement on whether a void, issue, is not ing then trial record does not otherwise contain attack, subject to collateral and thus not agreement. of a How- plea indication point it was at some time sub- because ever, specifically nothing record plea If ject to reformation.12 there was agreement refutes existence of a plea sentencing agreement on concurrent either, above, appel- and as we observed issue, estopped from chal- appellant plea lant of a conceded the existence judgment. detail our rea- lenging agreement in a pleading before the soning points on these below. But if assume there appeals. even we Agreement Judgment A. No Means no plea agreement, was a we have informa- Is Not Void terms, concerning specif- tion and more en Appellant’s challenge to the ically, whether terms included concur- allegation hancement this case consti sentencing, rent unless construe the we tutes a collateral attack on contention that State’s there was a judgment of a collater conviction.13 Such agreement an as admission10 to that ef- only prior al is if the permitted attack fect.11 void, merely judgment is and not voidab le.14 purposes, complains a the of was not available for enhancement about decision of court although arguments only holding the those were not discussed need address appeals’s opinion. appeals. in the court of court of position parties This is the same the sort sentencing 10. An agreement concurrent the is a are when case before disadvantage estop- if be to the State’s would appeals. party the The who loses at trial level pel apply, because if there is no does ruling both

must address the trial court’s agreement, the then sentence is reformable. ruling, rationale for the see Tex.R.App. P. See below. discussion 33.1(a)(l)(A)(party complaining about trial proceedings grounds must have stated for rul Although ten-year the the sentence for pro ing), (2)(A)(party complaining about trial County escape a was the maximum for Smith ceedings ruling), the must have obtained a but felony, suggests third-degree the record party prevail who wins at the trial level can a the have been enhanced to offense could appeal the on basis of a rationale not second-degree felony prior the either court, by the State v. Hern addressed see burglary prior convic- or the sexual assault don, (Tex.Crim.App. 905 n. 4 12.42(a)(3)(West § See tion. 2007)("the general rule is that a trial court’s Tex. Pen.Code ruling upheld be if it correct on will legal applicable theory, the artic even if court holding, this we need not ad- Because of basis”). point of Vola- ulated an invalid estopped whether a defendant could be dress regard parties’ positions in sen is that the this judgment a when there was no to attack even change during the are fixed at trial and do plea agreement. subsequent appellate litigation. course of Thus, party who loses at trial level (Tex. v. New complains about a decision of who Crim.App.1979). address both the hold must ing reasoning appeals, and the of the court of 14. Id. party who wins at trial level who but Johnson, Initially, point parte applicant we out that there is In Ex a judgment corpus difference between an entire claimed on habeas that his convic being portion “void” a judgment aggravated robbery and a tion for void was be “void.” a being example, judgment For cause contained an unauthorized fine.21 may contain or sentencing jury two more ele The had a assessing rendered verdict fine), (e.g. imprisonment punishment fifty ments one of years of confinement may $10,000 fine, which other valid while the and a according but only void.15 When one of the sentencing habitual-sentencing statute which under void, judgment elements is applicant rendered was fine punished, no was only void if judgment cannot be re authorized.22 We held that the trial court (i.e. infirmity formed cure the the infir empowered judgment to reform the mity by deleting cannot be cured without resort the unauthorized fine.23 resentencing).16 addressing Some cases In Barker defendant did types judgment other defects have like challenged appellant what did here: he wise indicated the judgment is not pur- conviction used for enhancement if void the defect could have been re poses at the trial of a new He offense.24 appeal judg formed the direct prior judgment claimed that the void question17 or pro ment in a nunc tunc because, three-day in addition to valid order.18 jail fine, fifty-dollar judg- sentence and

This has addressed at least ment provision three contained an invalid com- judgment relating muting different curable defects term sentence to six-month punishment probation.25 rejected that arose from contested defen- trial, First, in which plea agree- upon there was no dant’s we relied contention.26 ment. parte King proposition Williams we confronted Ex “a appeal claim irreg- direct that a cumulation containing agreed, order was void.19 We and we ularity de- be reformed on void, entry leted the cumulation order but otherwise or and pro nunc tunc is not may affirmed the conviction.20 collaterally not be attacked.”27 Sec- Johnson, Rhodes, parte 15. See Ex S.W.2d 18. at 697 605 560 S.W.2d 667. (Tex.Crim.App. 1985)(imprisonment was with range punishment, in the of but fine exceeded 754, (Tex.Crim.App. 19. 675 S.W.2d 760 range punishment). the of 20. Id. 607-08; State, at 16. Id. Barker v. 169 Tex. 277, 182, 278-79, 334 Crim. (1960). S.W.2d 183-84 21. at 697 S.W.2d 605. 665,

17. v. 560 Rhodes S.W.2d 667 22. Id. Barker, (Tex.Crim.App. 1978)(quoting 169 Tex. 279, 184)("A at judg Crim. 334 S.W.2d at 23. id. at 607-08. containing irregularity or ment may which be reformed on or nunc 278, at 24. 169 Tex.Crim. at 334 S.W.2d 183. void, pro entry tunc is not not be attacked.”); collaterally v. Smothermon 25. Id. 929, (Tex.Crim.App. 931 1964)(“could proper in a have been reformed 279, 26. 334 at 184. Id. at S.W.2d Brown, proceeding”); parte Ex 145 Tex.Crim. 42, 718, 39, (1942)(‘‘upon 720 S.W.2d case, (citing parte King, original appeal 27. Id. Ex 156 Tex.Crim. this have been of could reformed”). (1951)). defect decide whether the ond, need not prop- cited v. State for we Lenore vari- void or voidable is itself of the here judgment providing “a prior osition that all,30 at ety,29whether it is even voidable pun- a fine of when the minimum $25 (or lack there- a cumulation order by law a fine provided $100 ishment of) of However part is the “sentence.”31 erroneous, void, not and was avail- but failing the defect one characterizes in a punishment able for enhancement prior in the appellant’s sentence cumulate subsequent prosecution a offense.”28 nature judgment, reformable escape Clearly, sentencing concurrent is where that it cannot render means the defect reforming agreement, not of a part a prior judgment void.32 to make the sentence consec- Appellant Is Es- Agreement B. Means accomplished utive without resort can Judg- Challenging topped already held resentencing. We have ment a cumulation order can be deleted disturbing the remainder of the without not, a majority has This Court judgment. a cumulation order Imposing opinion, application addressed simply flip where one as in circumstances such estoppel doctrine side This of situation type coin. But the issue was discussed these. range possible does not involve a of valid plurality opinion rehearing Heath require punishment options that would opinion in Ex concurring and in a State33 hearing new If sentencing to be held. Williams,34 both of involved parte sentencing two sen- concurrent between plea-bar challenging (here escape prior ag- tences judgment of gained conviction assault) invalid, gravated imposed proba sexual ground judge (consecutive only option authority one valid remains to do so.35 tion without the possible, that the doctrine sentencing), making plurality reformation decided Heath least, plea-bargain- very estoppel bar appeal. on direct would (citing determine what this Court 137 Tex.Crim. "sentence” to Lenore void). (1939)). says when it a sentence is 129 S.W.2d 657 means Townsend, parte Ex 80- See We need and do not decide whether (Tex.Crim.App.2004)(challenge stacking any remedy that would the State now status not order as invalid due defendant’s escape prior sen- it to cumulate the enable cognizable corpus on when it habeas could tence, own or whether the State’s use appeal). have been raised direct on judgment offense to enhance the current utilizing a estop such would the from 680, Langs 183 686 30. See S.W.3d remedy. (Tex.Crim.App.2006)(double jeopardy, multi- ple punishment violation can be forfeited 337-40 33. 817 S.W.2d on the face of the violation is not clear when opinion re- (Tex.Crim.App.l991)(plurality serve the in- record and forfeiture would hearing). procedural underlying de- terests the rules of fault). 658-60 65 S.W.3d 34. P.J., concurring). (Tex.Crim.App.2001)(Keller, Ross, 748, 750 31. State v. See (Tex.Crim.App.1997)(for purpose of State’s Williams, opin- supra. The 35. See Heath and term appeal, "sentence” includes whether the original been in Heath has concurrent); submission ion Speth imprisonment is but see probation not a basis on the overruled 535 6 S.W.3d Williams, X, at part (Tex.Crim.App.1999)(Womack, sentence. concur- (Court’s op.). statutory ringXcriticizing definition of 657-58 use of ing challenge to illegal applied negotiated plea setting defendant’s sen- to the By contrast, Williams concur- tence.36 affecting only punishment rule error rence concluded that the plea-bargaining only in sentencing hearing.45 results a new defendant in that estopped case The Heath plurality an illogi- made challenging the trial court’s be- leap: cal assumed the mistake made pro- cause he had accepted benefits (which by the court of in Shannon Although majority bation.37 a applied estoppel) never the doctrine of in Williams chose to deny upon relief assumption underlying somehow an ground,38 different this Court subse- of estoppel.46 expla- doctrine Without suggested quently estoppel that the issue nation other the unsupported than as- concurring opinion open raised is an sumption that Shannon somehow had question.39 hand, something to do the issue at with An plurality opinion examination of the Heath plurality reached odd conclusion Heath reveals that in its holding applying plea-bar- to bar estoppel estoppel upon faulty issue was based gaining complaint an il- defendant’s about premise. Immediately reaching before legally lenient result sentence would conclusion, discussed Shan plurality “treating those as punishment errors er- non v. State40 The Heath plurality point only” involving rors somehow resen- Shannon, that, ed out the defendant tencing. proposition But this makes no years was sentenced to two confinement Heath plurality sense. The took the plea agreement, accordance with a but just premise that it unfair to one bind contended on the offense bargain, to a party plea and concluded actually for which he was sentenced was void, from this that when sentence is Class A misdemeanor a maximum parties both must be unbound from the punishment of year.41 one The court of Heath plea bargain. The alternative Shannon appeals in agreed, but remanded plurality parties overlooked was that both resentencing.42 petition the case for In a plea could be bound bargain —which review, discretionary the State correct estoppel accom- precisely what would ly argued that because there awas plish. We thus conclude that the Heath bargain, proper remedy undo was to plurality persuasive lacks force. plea.43 agreed.44 the entire Shannon had erroneously Acknowledging a “dearth of Texas case- Shannon). (citing 36. S.W.2d at at 340. 41. Id. (Keller, P.J., S.W.3d at 658-60 concur- Shannon, (citing at 339-40 ring). (Court's op.)("probation” Id. at 658 is not Shannon, part (citing Id. at 340 S.W.2d at sentence and the defendant failed 43. 708 harm). to show State, 804,

39. v. S.W.3d n. 8 119 806 Mizell 44. Id. (Tex.Crim.App.2003)(citing concurrence in State, citing Williams and Collins v. 509 45. (Ind.1987)). 827 N.E.2d Heath, (discussing Heath,

40. 817 at 339-40 S.W.2d at 46. See 817 S.W.2d 340. State, (Tex.Crim. v. Shannon 708 850 App.1986)).

891 Moreover, a close cousin Williams subject,47 law” concur- on by judgment” “estoppel is “estoppel State,48 v. Pry stash ap- which rence cited contract,” accepts bene party where a who “invited to the different plied somewhat estopped from a contract is fits under context, error” and out-of-state cases existence, validi questioning the contract’s turn to a point.49 more We now were ty, estoppel apply can or effect.53 So relating full of the authorities examination (as Prys- requests in only to unilateral subject. to this tash), of agree in the but also context ments, “request” is As where the mutual. previously dealt in We have contracts, typical it is with most is true Prystash v. estoppel with a type bargain will parties that both in involving requests unilateral that result judgment. from benefit error,” estoppel but flexible “invited Indeed, jurisdic- other courts several that manifests itself various doctrine that a cannot tions have held not limited to unilateral forms are imposes an plea agreement enter requests. estoppel The at issue variant sentence, sen- benefit from that illegal “estoppel by judgment.”50 In this here is tence, later and then attack the accepts type estoppel, “[o]ne who do suddenly it is his interests to when decree, judicial of a or judgment, benefits rejecting a defendant’s claim so.54 estopped deny validity order sentence, too-lenient, illegal overturning a thereof, thereof, propriety any part or of Appeals anticipat- Mississippi reject any grounds; nor can he to accom- exactly applicant what wishes ed consequences.”51 only burdensome plish present in the case: principle challenges to this is for exception hand, On the other a defendant subject-matter jurisdiction to the an reap the benefits of not be allowed sentence, lighter than judgment.52 illegal which rendering Williams, P.J., (Keller, calling may plea agreement enter a 47. S.W.3d at 659 dant 65 sentence, illegal benefit from that sen- concurring). for an tence, complain later that it was State, sentence”); So.2d illegal Punta v. 806 48. 522 2002) 569, (quoting (Fla.App. 570 3rd DCA (Fla.App. 1st So.2d 488 Bashlor v. 586 Williams, 49. See 65 S.W.3d at 658-660. 1991))("sentences imposed are DCA are statutory requirements, which violation of Estoppel 50. 130. 31 C.J.S. & Waiver% and which of the defendant to the benefit challenged agreed, not be sifter he Id., p.565. 51. flowing accepted the benefits defendant has carry plea, out the but failed Id., 566; Williams, p. 65 52. see also him”); imposed Graves conditions (Keller, concurring)(discussing PJ. 659-60 1089, (Miss.App.2002)(defen- 822 So.2d cases). mute when is handed dant "cannot stand illegal is more favorable sentence which 124, Estoppel p. § & 31 C.J.S. Waiver legal have what sentence would than sentence, been, illegal reap the benefits of that Hester, 290, 295, People prejudiced Cal.4th as a to have and later claim been thereof”); Cal.Rptr.2d P.2d Pruitt v. 846 So.2d result (2000)(‘ (Miss.App.2002)("A who felon 'defendants have received convicted bargain quietly enjoy an ille- not be allowed not the benefits of benefit their should sentence, by attempting gally and later attack to trifle with the courts to bet- lenient suddenly bargain through appellate pro- is in his interest when it ter the sentence ("a so”). cess"); Collins, 509 N.E.2d at 833 defen- do what legal ment would have that would now be for en- available been, and then turn around and attack instead, purposes. hancement But appel- the legality illegal, lighter sen- lant quietly enjoyed benefits of the tence when it his serves interest to do illegally judgment, lenient it challenging so. Allowing such actions would [wreak] because, now only due to his own subse- upon justice havoc system the criminal conduct, quent judgment criminal can example, this state. For all subse- punishment be used to his enhance quent convictions and sentences of that agreed new offense. If he to the concur- defendant reliant upon which are rent sentencing provision, through his conviction illegal concomitant procure own conduct and helped he benefit sentence would have to be set aside. illegality should not now This would in a result number of en- be complain. allowed to hanced and offender habitual sentences The judgment appeals of the court of being set very aside for the offender reversed, judgment and the of the trial enjoyed who had already greater lenien- court is affirmed. cy than the law allows.55 reasons, For the same that court refused MEYERS, JOHNSON, WOMACK and grant relief in a later case when the JJ., joined IIA Parts I and and dissented challenged unauthorized to Part IIB. probation after it been had revoked and used enhance a offense.56 later PRICE, J., dissenting opinion. filed a persuasive. find these cases PRICE, J., dissenting opinion. filed a A enjoyed defendant who has the benefits I respectfully to the Court dissent dis- an agreed judgment prescribing a too- posing of this the basis of an case on issue punishment lenient permit that was never decided the court of to collaterally judgment ted attack appeals. long time For a we have said a later date on the basis of the illegal that, in our as a capacity discretionary leniency.57 Here, appellant received a court, only review we review “decisions” of judgment illegally lenient hav ing appeals.1 courts We have not al- concurrently sentence run instead ways agree been able to on what consecutively. Had he consti- complained illegal leniency appeals.2 about the at tutes a “decision” the court of the time of trial, fairly But appeal, even on we have consistent in direct been likely requirement could a legal judg- have obtained must Graves, State, 348, E.g., 55. 822 So.2d at 1092. Arline v. 353 n. (Tex.Crim.App.1986); Lee v. Pruitt, 846 So.2d at 274. (Tex.Crim.App.1990); la Hol (Tex. nd v. 802 S.W.2d 700-01 express opinion today 57. We no on whether 1991); Crim.App. George E. Dix & Robert O. estoppel apply challenge could to bar to a Dawson, 43A Texas Practice: Criminal Practice judgment imposing punishment that is ille- 44.21, (2d § harsh, 858-59 gally express opinion nor do we Procedure ed.2001). estoppel bar a would direct attack on illegally imposing pun- lenient Williams, ishment. See 65 S.W.3d at 660 E.g., 449 n. Barfield (Keller, P.J., concurring)(observing that persuasively argued could be that a defendant yet who his conviction ac- cepted illegal judgment). benefits of Haley In v. discretionary an issue review.”7 respect reach a “decision” with to State,8 Presiding it on merits.3 adopted before we will review implicitly we law in the case There are some indications even reached Judge position, and Keller’s jurisdiction to do that we even lack procedural ques- default of the the merits In the direct otherwise.4 cases which it, ourselves, rather than to remand tion appeals court have should reached never though appeals court of had not, issue, and the merits of an but did that respect to rendered a “decision” with brought to failure to reach the merits question.9 discretionary petition in a for our attention case in we review, Haley, In the same appellate that the we remand so Presiding Judge’s in the first implicitly adopted court can reach “decision” we the mer- Alonzo, instance. But do not address sepa- filed another position she brought the issue its ourselves unless concurring in result. opinion, rate to back us after remand. her ex- argued This Alonzo time she to apply just procedural ception should Presiding past years, In the several apply to Judge an default but should also begun questions, Keller has advocate rule, exception allowing to this the State to prevailing party at trial any issue that preservation raise of error for issues reply raise in its neglected to brief discretionary petitions first time in re- appeal. direct She maintained that: State,5 argued view. In Alonzo v. she first prevailed at trial should party that, preservation of error because issues argu- never to advance “systemic,” by are and should be reached as a Appeals ment before appellate first-tier court whether raised argument predicate raising not,6 parties failure State discretionary This conclusion review. explicitly raise in its procedural default view that I articulat- consistent with the reply brief direct should regard v. ed Alonzo prevent raising peti- it from the issue in a I further of error. would preservation discretionary tion for review. reasoning my Alon- conclude that event, argued, this Court “should she types also all opinion apply zo either remand the case to the court of by a be made arguments that could appeals to the issue or [we] consider prevailed at trial.10 preservation party should consider the issue on (Kel- (Tex.Crim.App.2005) appeals 3. If court of failed to render a 5. 158 S.W.3d ler, P.J., properly brought dissenting). before decision on it, issue discretionary grant re- we will sometimes ap- view to determine whether State, 695, (Tex. 6. Archie v. 221 S.W.3d peals failing decide erred in the issue. But 1, State, Crim.App.2007); v. 942 S.W.2d Jones part court when we find error on the 2 n. 1 instances, we in these remand to the rather than reach the merits State, P.J., (Keller, supra, at 518 7. v. Alonzo E.g., supra; Dix & ourselves. Dawson, Lee dissenting). 44.23, § supra, at 862-63. E.g., 917- Owens v. 827 S.W.2d 8. Id. at 519. Dawson, (Tex.Crim.App.1992); & 18 n. 7 Dix 44.21, supra, § v. Con 859. See also State (Tex. Haley saul, (Tex.Crim.App. Crim.App.2005). J., 1998) (Price, ("This concurring) court’s jurisdiction is limited to review of decisions P.J., (Keller, concurring). at 519 appeals."). the courts of 894 fanfare,

Quite recently, and without the first rehearing, the time in a motion for adopted as In Court this view well. Volo- the court of is not to appeals obligated State,11 sen v. issue, not, the held that address the and if it Court the does there prevailing party failure in the is no respect “decision” with to that issue argument court to reply make an in its for petition the State to raise in a for in appellate brief the first-tier court will discretionary That precisely review.13 prevent not from entertaining this Court case; what happened in instant Ro- argument that on the merits when raised directly point. chelle is reply petition for the first in time for discre- brief on appeal, only argument direct tionary Volosen, review. I in dissented response the State made in I again today. and dissent appellant’s point error was 42.08(b) that Article of the Code of Crimi- exception The evolution of this to the him, nal not apply Procedure did since requirement be a there “decision” of in custody penitentia- was not court of appeals for this Court to re- ry escape time of and was view illustrates how inconsistencies creep therefore not an “inmate” in contemplation into our case law. In her dissenting opin- Alonzo, provision.14 of that in The State made no Presiding Judge ion Keller can- argument, accept other didly content to acknowledged position that her State,15 upon that Fullbright at odds with which the opinion this in Court’s Ro- State,12 relied, appellant “viability” principally chelle v. was control- of which Then, argued ling. first time in she we should “re-examine.” In its motion separate Haley, rehearing, for en opinion her in she did banc the State made inconsistency. arguments, revisit this simply including She ar- number of new Alonzo, gued position her argument appellant which the es- should be adopted Haley, topped Court sub silentio ought claiming illegally that an le- Volosen, to be extended. punishment, And that is nient of which he enjoyed did, just benefits, what the but again without is void. with, addressing

ever conflict did apparent grant rehearing.16 not see fit to Under Rochelle, then, much less our overruling, binding prece- has never been over- ruled, nothing dent Rochelle. there is for this Court review.17 In Rochelle we that when held the State

(the prevailing party agree ought in the trial court I can that Rochelle case) the facts of that raises an issue applies overruled to the extent that it (Tex.Crim.App.2007). argument. they 11. 227 S.W.3d 80 addressed another Instead viz., altogether, Fullbright issue (Tex.Crim.App.1990). S.W.2d 121 question should control the whether an order illegally cumulate ren- fails to sentences 124-25; Id. at See also Sotelo v. ders the “void.” The be- dissenters (Tex.Crim.App.1995). not, that, lieved that it absent 42.08(b). sentence, 14. Tex.Code Crim. Proc. art. void conviction was avail- appellant’s pun- able to enhance the instant 15. 818 S.W.2d 808 ishment. could somehow Even if it be said that, justices filed a written dis- because two (Tex. 16. Rhodes v. sent, ques- the court "decided” this App.-Houston [1st] rehearing, tion when it denied the issue thus justices 17. Two to the dissented denial of the “decided" is still same as the one the rehearing. en banc at 356-59. Those today. majority decides justices estoppel did not the State’s address Questions procedural issues of default. CLAY, Appellant first- Allen systemic, are Willie preservation

error to ad- appellate courts are tier par- regardless dress them If join appellate briefs.

ties issue in their of Texas. The STATE fails to reach an obvious appeals a court PD-1370-05. No. default, procedural party issue of to be able ought in the trial court prevailed Appeals of Texas. of Criminal in complain it for first time about review, discretionary and we Nov. petition for for the court of ought remand cause in first

appeals to address the issue indeed, joined majori- I

instance. And Haley, implicitly in in which we

ty opinion Judge excep-

adopted Presiding Keller’s it is- applied error-preservation

tion as I not think rationale

sues.18 But do

justifying beyond exception extends context, I which is reason dissent- Rochelle, in

ed Volosen. Consistent with non-systemic ought any

we to hold that

issue that who at trial party prevailed reply

neglects to raise brief and which necessary the court of

is therefore not decision,

appeals’s and not in fact decided appeals, the court of cannot be raised petition

for the first time in a for discre-

tionary Because contin- review. the Court path

ues down re-exam- this without ever (at

ining viability least as Rochelle it

applies procedural to issues other than

default) a non- and reaches out to decide

procedural issue the court of default addressed, this case never much decided,

less I continue to dissent.19 however, bring now we trial court but loses on can retrospect, 18. In I think Haley petition have the cause in to the remanded in a for discretion- issue wants review, to address the issue error ary regardless of whether the court instance, preservation in the first rather than upon that issue appeals was called decide deciding for the first time on it ourselves practice only presume appeal, I can discretionary ante. review. See note holding apply that even-hand- the Court will defen- edly and criminal to both the State de over- 19. If fact Rochelle been facto dants. entirety, con- ruled in trols, now Volosen party prevails in such that the

Case Details

Case Name: Rhodes v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 7, 2007

Citation: 240 S.W.3d 882

Docket Number: PD-1597-05, PD-1598-05, PD-1599-05

Court Abbreviation: Tex. Crim. App.