Rhodes v. StateRhodes v. State
- Reporters:
- , ,
- Before:
- Keller
Lead Opinion
delivered the opinion of the Court
in which KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.We must determine whether a defendant may collaterally attack a prior judgment of conviction used to enhance a new offense, in the trial of that new offense, on the ground that the prior judgment was too lenient. We hold that he cannot.
I. BACKGROUND
A. Trial
Appellant was serving time in prison for burglary (three years) and aggravated sexual assault (forty-five years). He was bench-warranted to Smith County to answer for a theft offense. While in the Smith County jail, he escaped. He was ultimately convicted on both the theft and escape charges. He was sentenced to two years in state jail for the theft and ten years in prison for the escape. The escape sentence was ordered to be run concurrently with the theft sentence. The written judgment for the escape conviction is silent as to whether the escape sentence was to run concurrently to or consecutively with appellant’s prior burglary and aggravated sexual assault sentences. This written judgment is also silent concerning whether or not there was a plea agreement.
Appellant later committed more crimes and was ultimately charged with new felony offenses of escape, burglary of a habitation, and theft. The State alleged two prior judgments of conviction for enhancement purposes.1 One of those prior judgments was for the Smith County escape case. Appellant filed a motion to quash that enhancement allegation. Relying upon Article 42.08 of the Code of Criminal Procedure, he claimed that the judgment was void because the escape sentence was run concurrently with his other sentences when the statute required that it be cumu-lated with the earlier burglary and sexual assault sentences he was serving at the time he committed the escape.2
The trial court denied appellant’s motion, the enhancement allegations were subsequently found to be true, and appellant was sentenced as an habitual offender on all three offenses, receiving sentences of thirty-three years, twenty-five years, and twenty-five years, respectively.
B. Appeal
In his sole point of error on appeal, appellant re-urged his contention that the Smith County escape judgment was void. In response, the State re-urged the first argument it had made at trial.3 The court of appeals found that Article 42.08(b) required that the sentence for the Smith County escape be stacked onto the sen-fence for the prior aggravated sexual assault,4 and it found that the failure to stack rendered the prior judgment void and thus unusable for enhancement purposes.5 As a result, the court of appeals reversed the judgment of the trial court and remanded the case for a new punishment hearing.6
The State filed a motion for rehearing, repeating its original argument and making the following additional arguments: (1) a prior conviction can be valid for enhancement purposes even if the sentence is void, (2) the trial court had no evidence before it that appellant met the criteria outlined in Article 42.08(b), (3) appellant bargained for the punishment obtained and cannot now complain of an action he earlier requested, and (4) a cumulation order is not part of the sentence. Appellant filed a response to the State’s motion. In responding to argument (3) above, appellant acknowledged that he “did enter into a plea bargain for his sentence in the Smith County escape case” but claimed that he did not “invite” the error as a result. The motion for rehearing was denied.
En banc consideration was also requested but denied. In an opinion dissenting from the denial of en banc consideration, Justice Keyes argued that a cumulation
C. Discretionary Review
In its petition for discretionary review, the State raises several issues, which can be summarized as follows: (1) whether appellant was estopped from complaining that his sentence was illegal, (2) whether a defendant’s constitutional rights would be violated by a nunc pro tunc order that would make the sentences run consecutively, (3) what is the legal effect of a failure to order a sentence to run consecutively as required by Article 42.08(b), and (4) what amount of evidence is required to invoke the mandatory provisions of Article 42.08(b).8
In arguing the estoppel question, the State claims that appellant entered into a plea agreement for his sentence on the Smith County escape charge. In his response brief, appellant contends that there is no evidence in the record to prove that his conviction was the result of an agreement.9 Our review of the trial rec
II. ANALYSIS
We need not decide whether to treat this case as involving a plea agreement with respect to the concurrent sentencing issue. As we shall explain, if there was no plea agreement on the concurrent sentencing issue, then the judgment is not void, and thus not subject to collateral attack, because it was at some point in time subject to reformation.12 If there was a plea agreement on the concurrent sentencing issue, then appellant is estopped from challenging the judgment. We detail our reasoning on these points below.
A. No Agreement Means Judgment Is Not Void
Appellant’s challenge to the enhancement allegation in this case constitutes a collateral attack on the prior judgment of conviction.13 Such a collateral attack is permitted only if the prior judgment is void, and not merely voidable.14
This Court has addressed at least three different curable judgment defects relating to punishment that arose from a contested trial, in which there was no plea agreement. In Williams v. State, we confronted on direct appeal a claim that a cumulation order was void.19 We agreed, and we deleted the cumulation order but otherwise affirmed the conviction.20
In Ex parte Johnson, an applicant claimed on habeas corpus that his conviction for aggravated robbery was void because it contained an unauthorized fine.21 The jury had rendered a verdict assessing punishment at fifty years of confinement and a $10,000 fine, but according to the habitual-sentencing statute under which the applicant was punished, no fine was authorized.22 We held that the trial court was empowered to reform the judgment by deleting the unauthorized fine.23
In Barker v. State, the defendant did what appellant did here: he challenged a prior conviction used for enhancement purposes at the trial of a new offense.24 He claimed that the prior judgment was void because, in addition to a valid three-day jail sentence and fifty-dollar fine, the judgment contained an invalid provision commuting the sentence to a six-month term of probation.25 We rejected the defendant’s contention.26 First, we relied upon Ex parte King for the proposition that “a judgment or sentence containing an irregularity which may be reformed on appeal or by nunc pro tunc entry is not void, and may not be collaterally attacked.”27 Sec
Clearly, where concurrent sentencing is not a part of a plea agreement, reforming the judgment to make the sentence consecutive can be accomplished without resort to resentencing. We have already held that a cumulation order can be deleted without disturbing the remainder of the judgment. Imposing a cumulation order where one is required is simply the flip side of the coin. This type of situation does not involve a range of valid possible punishment options that would require a new sentencing hearing to be held. If concurrent sentencing between two sentences (here the escape and the prior aggravated sexual assault) is invalid, then only one valid option remains (consecutive sentencing), making reformation possible, at the very least, on direct appeal.
We need not decide whether the defect here is itself of the void or voidable variety,29 whether it is even voidable at all,30 or whether a cumulation order (or lack thereof) is part of the “sentence.”31 However one characterizes the defect of failing to cumulate appellant’s sentence in the prior escape judgment, the reformable nature of the defect means that it cannot render the prior judgment void.32
B. Agreement Means Appellant Is Es-topped from Challenging the Judgment
This Court has not, in a majority opinion, addressed the application of the estoppel doctrine in circumstances such as these. But the issue was discussed in a plurality opinion on rehearing in Heath v. State33 and in a concurring opinion in Ex parte Williams,34 both of which involved a defendant challenging a prior plea-bargained judgment of conviction on the ground that the trial judge imposed probation without the authority to do so.35 The Heath plurality decided that the doctrine of estoppel would not bar a plea-bargain
An examination of the plurality opinion in Heath reveals that its holding on the estoppel issue was based upon a faulty premise. Immediately before reaching its conclusion, the plurality discussed Shannon v. State40 The Heath plurality pointed out that, in Shannon, the defendant was sentenced to two years of confinement in accordance with a plea agreement, but he contended on appeal that the offense for which he was sentenced was actually a Class A misdemeanor with a maximum punishment of one year.41 The court of appeals in Shannon agreed, but remanded the case for resentencing.42 In a petition for discretionary review, the State correctly argued that because there was a plea bargain, the proper remedy was to undo the entire plea.43 We agreed.44 The court of appeals in Shannon had erroneously applied to the negotiated plea setting the rule that error affecting only punishment results in only a new sentencing hearing.45
The Heath plurality then made an illogical leap: it assumed that the mistake made by the court of appeals in Shannon (which never applied the doctrine of estoppel) was somehow an assumption underlying the doctrine of estoppel.46 Without any explanation other than the unsupported assumption that Shannon somehow had something to do with the issue at hand, the Heath plurality reached the odd conclusion that applying estoppel to bar a plea-bargaining defendant’s complaint about an illegally lenient sentence would result in “treating those errors as punishment errors only” and somehow involving resen-tencing. But this proposition makes no sense. The Heath plurality took the premise that it is unfair to bind just one party to a plea bargain, and concluded from this that when a sentence is void, both parties must be unbound from the plea bargain. The alternative the Heath plurality overlooked was that both parties could be bound by the plea bargain — which is precisely what estoppel would accomplish. We thus conclude that the Heath plurality lacks persuasive force.
Acknowledging a “dearth of Texas case-
We have previously dealt in Prystash v. State with a type of estoppel involving unilateral requests that result in “invited error,” but estoppel is a flexible doctrine that manifests itself in various forms that are not limited to unilateral requests. The variant of estoppel at issue here is “estoppel by judgment.”50 In this type of estoppel, “[o]ne who accepts the benefits of a judgment, decree, or judicial order is estopped to deny the validity or propriety thereof, or of any part thereof, on any grounds; nor can he reject its burdensome consequences.”51 The only exception to this principle is for challenges to the subject-matter jurisdiction of the court rendering the judgment.52
Moreover, a close cousin of “estoppel by judgment” is “estoppel by contract,” where a party who accepts benefits under a contract is estopped from questioning the contract’s existence, validity, or effect.53 So estoppel can apply not only to unilateral requests (as in Prys-tash), but also in the context of agreements, where the “request” is mutual. As is true with most contracts, it is typical that both parties to a plea bargain will benefit from the judgment.
Indeed, courts in several other jurisdictions have held that a defendant cannot enter a plea agreement that imposes an illegal sentence, benefit from that sentence, and then attack the judgment later when it is suddenly in his interests to do so.54 In rejecting a defendant’s claim for overturning a too-lenient, illegal sentence, the Mississippi Court of Appeals anticipated exactly what applicant wishes to accomplish in the present case:
On the other hand, a defendant should not be allowed to reap the benefits of an illegal sentence, which is lighter thanwhat the legal sentence would have been, and then turn around and attack the legality of the illegal, lighter sentence when it serves his interest to do so. Allowing such actions would [wreak] havoc upon the criminal justice system in this state. For example, all subsequent convictions and sentences of that defendant which are reliant upon the conviction concomitant with the illegal sentence would have to be set aside. This would result in a number of enhanced and habitual offender sentences being set aside for the very offender who had already enjoyed greater leniency than the law allows.55
For the same reasons, that court refused to grant relief in a later case when the defendant challenged a prior unauthorized probation after it had been revoked and used to enhance a later offense.56
We find these cases persuasive. 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.57 Here, appellant received a judgment that was illegally lenient by having his sentence run concurrently instead of consecutively. Had he complained about the illegal leniency at the time of trial, or even on direct appeal, the State could likely have obtained a legal judgment that would now be available for enhancement purposes. But instead, appellant quietly enjoyed the benefits of the illegally lenient judgment, challenging it now only because, due to his own subsequent criminal conduct, the judgment can be used to enhance his punishment for a new offense. If he agreed to the concurrent sentencing provision, then through his own conduct he helped procure and benefit from the illegality and he should not now be allowed to complain.
The judgment of the court of appeals is reversed, and the judgment of the trial court is affirmed.
MEYERS, WOMACK and JOHNSON, JJ., joined Parts I and IIA and dissented to Part IIB. PRICE, J., filed a dissenting opinion.Notes
. See Tex. Pen.Code § 12.42(d).
. Article 42.08(b) provides: “If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.”
.The court of appeals found that the State conceded in its brief that, under Fullbright v. State, 818 S.W.2d 808, 810 (Tex.Crim.App.1991), “if the trial court erred in failing to stack the Smith County escape sentence, then it cannot rely upon that conviction to enhance Rhodes’s convictions that are on appeal here.” Rhodes v. State, 175 S.W.3d 348, 352 (Tex.App.-Houston [1st Dist.] 2004). In its brief, the State said, “The State does not disagree with the Appellant on the nature of the law as to the use of convictions for purposes of enhancements as stated in Fullbright v. State.” We are uncertain that this concession is as expansive as the court of appeals has characterized it, but in any event, we are not bound by a party‘s concession on a matter of law. Long v. State, 931 S.W.2d 285, 289 (Tex.Crim.App.1996).
. Because appellant was serving time for both the burglary and the aggravated sexual assault offenses at the time of the escape, Article 42.08 required the escape sentence to be stacked on the much longer sentence for the aggravated sexual assault conviction because it would be the last to terminate. See Basden v. State, 897 S.W.2d 319 (Tex.Crim.App.1995).
. Rhodes, 175 S.W.3d at 350-55.
. Id. at 355.
. Id. at 356-59 (Keyes, J., dissenting from denial of en banc consideration).
. The State‘s grounds for review are as follows:
First: This Court needs to decide whether a defendant can be estopped from complaining about an error capable of rendering a judgment or sentence void.
Second: This Court needs to decide whether a defendant can be estopped from complaining, after he enjoyed its benefits, that his sentence was illegal or void because it was below the statutory minimum.
Third: This Court needs to decide whether a defendant’s constitutional rights are violated when a trial court corrects a clerical error by changing a concurrent sentence to a statutorily mandatory consecutive sentence years after the defendant has begun to serve the sentence.
Fourth: This Court needs to determine the legal effect of the failure to order a sentence to run consecutively as ordered by 42.08(b) of the Texas Code of Criminal Procedure. Fifth: This Court needs to make a practical review of the question of what amount of evidence is required to invoke the mandatory provisions of Article 42.08(b).
. Appellant’s main argument in his response brief is that the State forfeited review of its current claims by failing to raise them on original submission to the court of appeals. Arguably, the State‘s fifth ground for review is an extension of the arguments it did present on original submission to the court of appeals. Nevertheless, because the State prevailed at trial, we may in our discretion address subsidiary arguments that support the trial court’s ruling that were not presented to the court of appeals. Volosen v. State, 227 S.W.3d 77, 80 (Tex.Crim.App.2007).
Judge Price contends that Volosen s holding is inconsistent with prior holdings in Rochelle v. State, 791 S.W.2d 121 (Tex.Crim.App.1990), and Sotelo v. State, 913 S.W.2d 507 (Tex.Crim.App.1995), and he contends that the holdings in those latter cases would bar our disposition of the current case. But Rochelle and Sotelo are distinguishable because, in both cases, the petitioner’s ground for review did not challenge any holding of the court of appeals, while Volosen and the present case involve grounds that do challenge a holding of the court of appeals, but for reasons not addressed by the lower appellate court.
In Rochelle, the State advanced a procedural default ground for review that did not challenge the court of appeals’s holding that the indictment was fatally defective. 791 S.W.2d at 122, 125. In Sotelo, the defendant’s claim that a remand for a new punishment hearing violated double jeopardy principles was not a challenge to the court of appeals’s holding that the trial court had erroneously quashed the State’s enhancement allegations. 913 S.W.2d at 508-09. By contrast, in Volosen, the State’s grounds for review directly challenged the court of appeals’s holding that the evidence was legally insufficient to support the defendant’s conviction because the defendant had established a defense as a matter of law — though the argument supporting the State’s challenge had not been considered by the court of appeals. 227 S.W.3d at 79-80. Similarly, in the present case, the arguments we consider today respond directly to the court of appeals‘s holding that the prior conviction was not available for enhancement purposes, although those arguments were not discussed in the court of appeals’s opinion.
This is the same sort of position the parties are in when the case is before a court of appeals. The party who loses at the trial level must address both the trial court’s ruling and the rationale for that ruling, see
. An agreement to concurrent sentencing would be to the State’s disadvantage if estop-pel does not apply, because if there is no agreement, then the sentence is reformable. See discussion below.
. Although the ten-year sentence for the Smith County escape was the maximum for a third-degree felony, the record suggests that the offense could have been enhanced to a second-degree felony with either the prior burglary or the prior sexual assault conviction. See Tex. Pen.Code § 12.42(a)(3)(West 1998).
. Because of this holding, we need not address whether a defendant could be estopped to attack a judgment even when there was no plea agreement.
. New v. State, 583 S.W.2d 781, 782 (Tex.Crim.App.1979).
. Id.
. See Ex parte Johnson, 697 S.W.2d 605 (Tex.Crim.App.1985)(imprisonment was within the range of punishment, but fine exceeded the range of punishment).
. Id. at 607-08; Barker v. State, 169 Tex.Crim. 277, 278-79, 334 S.W.2d 182, 183-84 (1960).
. Rhodes v. State, 560 S.W.2d 665, 667 (Tex.Crim.App.1978)(quoting Barker, 169 Tex.Crim. at 279, 334 S.W.2d at 184)(“A judgment or sentence containing an irregularity which may be reformed on appeal or by nunc pro tunc entry is not void, and may not be collaterally attacked.”); Smothermon v. State, 383 S.W.2d 929, 931 (Tex.Crim.App.1964)(“could have been reformed in a proper proceeding”); Ex parte Brown, 145 Tex.Crim. 39, 42, 165 S.W.2d 718, 720 (1942)(‘‘upon the original appeal of this case, it could have been reformed”).
. Rhodes, 560 S.W.2d at 667.
. 675 S.W.2d 754, 760 (Tex.Crim.App.1984).
. Id.
. Id.
. id. at 607-08.
. Id.
. Id. at 279, 334 S.W.2d at 184.
. Id. (citing Ex parte King, 156 Tex.Crim. 231, 240 S.W.2d 111 (1951)).
. Id. (citing Lenore v. State, 137 Tex.Crim. 417, 129 S.W.2d 657 (1939)).
. See Ex parte Townsend, 137 S.W.3d 79, 80-82 (Tex.Crim.App.2004)(challenge to stacking order as invalid due to defendant’s status not cognizable on habeas corpus when it could have been raised on direct appeal).
. See Langs v. State, 183 S.W.3d 680, 686 (Tex.Crim.App.2006)(double jeopardy, multiple punishment violation can be forfeited when the violation is not clear on the face of the record and forfeiture would serve the interests underlying the rules of procedural default).
. See State v. Ross, 953 S.W.2d 748, 750 (Tex.Crim.App.1997)(for purpose of State’s appeal, “sentence” includes whether the term of imprisonment is concurrent); but see Speth v. State, 6 S.W.3d 530, 535 (Tex.Crim.App.1999)(Womack, X, concur-ringXcriticizing use of statutory definition of “sentence” to determine what this Court means when it says a sentence is void).
. We need not and do not decide whether the State now has any remedy that would enable it to cumulate the prior escape sentence, or whether the State’s own use of the prior judgment to enhance the current offense would estop the State from utilizing such a remedy.
. 817 S.W.2d 335, 337-40 (Tex.Crim.App.l991)(plurality opinion on rehearing).
. 65 S.W.3d 656, 658-60 (Tex.Crim.App.2001)(Keller, P.J., concurring).
. See Heath and Williams, supra. The opinion on original submission in Heath has been overruled on the basis that probation is not a part of the sentence. Williams, 65 S.W.3d at 657-58 (Court’s op.).
. 65 S.W.3d at 658-60 (Keller, P.J., concurring).
. Id. at 658 (Court‘s op.)(“probation” is not part of the sentence and the defendant failed to show harm).
. Mizell v. State, 119 S.W.3d 804, 806 n. 8 (Tex.Crim.App.2003)(citing concurrence in Williams and citing Collins v. State, 509 N.E.2d 827 (Ind.1987)).
. Heath, 817 S.W.2d at 339-40 (discussing Shannon v. State, 708 S.W.2d 850 (Tex.Crim.App.1986)).
. Id. at 339 (citing Shannon).
. Id. at 339-40 (citing Shannon, 708 S.W.2d at 851).
. Id. at 340 (citing Shannon, 708 S.W.2d at 851).
. Id.
. Id.
. See Heath, 817 S.W.2d at 340.
. Williams, 65 S.W.3d at 659 (Keller, P.J., concurring).
. 3 S.W.3d 522 (Tex.Crim.App.1999).
. See Williams, 65 S.W.3d at 658-660.
. 31 C.J.S. Estoppel & Waiver % 130.
. Id., p.565.
. Id., p. 566; see also Williams, 65 S.W.3d at 659-60 (Keller, PJ. concurring)(discussing cases).
. 31 C.J.S. Estoppel & Waiver § 124, p. 554.
. People v. Hester, 22 Cal.4th 290, 295, 92 Cal.Rptr.2d 641, 992 P.2d 569, 572 (2000)(‘ ‘defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process“); Collins, 509 N.E.2d at 833 (“a defendant may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence”); Punta v. State, 806 So.2d 569, 570 (Fla.App. 3rd DCA 2002) (quoting Bashlor v. State, 586 So.2d 488 (Fla.App. 1st DCA 1991))(“sentences which are imposed in violation of statutory requirements, which are to the benefit of the defendant and to which he agreed, may not be challenged sifter the defendant has accepted the benefits flowing from the plea, but has failed to carry out the conditions imposed on him”); Graves v. State, 822 So.2d 1089, 1091 (Miss.App.2002)(defendant “cannot stand mute when he is handed an illegal sentence which is more favorable than what the legal sentence would have been, reap the benefits of that illegal sentence, and later claim to have been prejudiced as a result thereof”); Pruitt v. State, 846 So.2d 271, 274 (Miss.App.2002)(“A convicted felon may not quietly enjoy the benefits of an illegally lenient sentence, and later attack the sentence when suddenly it is in his interest to do so”).
. Graves, 822 So.2d at 1092.
. Pruitt, 846 So.2d at 274.
. We express no opinion today on whether estoppel could apply to bar a challenge to a judgment imposing a punishment that is illegally harsh, nor do we express an opinion on whether estoppel would bar a direct attack on a judgment imposing an illegally lenient punishment. See Williams, 65 S.W.3d at 660 (Keller, P.J., concurring)(observing that it could be persuasively argued that a defendant who appeals his conviction has not yet accepted the benefits of the illegal judgment).
Dissenting Opinion
filed a dissenting opinion.
I respectfully dissent to the Court disposing of this case on the basis of an issue that was never decided by the court of appeals. For a long time we have said that, in our capacity as a discretionary review court, we review only “decisions” of the courts of appeals.1 We have not always been able to agree on what constitutes a “decision” of the court of appeals.2 But we have been fairly consistent in the requirement that the court of appeals must
In the past several years, Presiding Judge Keller has begun to advocate an exception to this rule, allowing the State to raise issues of error preservation for the first time in petitions for discretionary review. In Alonzo v. State,5 she first argued that, because issues of error preservation are “systemic,” and should be reached by a first-tier appellate court whether raised by the parties or not,6 the failure of the State to explicitly raise procedural default in its reply brief on direct appeal should not prevent it from raising the issue in a petition for discretionary review. In that event, she has argued, this Court “should either remand the case to the court of appeals to consider the issue or [we] should consider the preservation issue on discretionary review.”7 In Haley v. State,8 we implicitly adopted Presiding Judge Keller’s position, and even reached the merits of the procedural default question ourselves, rather than to remand it, though the court of appeals had never rendered a “decision” with respect to that question.9
In Haley, the same case in which we implicitly adopted the Presiding Judge’s position in Alonzo, she filed another separate opinion, concurring in the result. This time she argued that her Alonzo exception should not apply just to procedural default questions, but should also apply to any issue that the prevailing party at trial neglected to raise in its reply brief on direct appeal. She maintained that:
the party that prevailed at trial should never be required to advance an argument before the Court of Appeals as a predicate for raising that argument on discretionary review. This conclusion is consistent with the view that I articulated in Alonzo v. State with regard to preservation of error. I would further conclude that the reasoning in my Alonzo opinion should apply also to all types of arguments that could be made by a party that prevailed at trial.10
The evolution of this exception to the requirement that there be a “decision” of the court of appeals for this Court to review illustrates how inconsistencies creep into our case law. In her dissenting opinion in Alonzo, Presiding Judge Keller candidly acknowledged that her position was at odds with this Court’s opinion in Rochelle v. State,12 the “viability” of which she argued we should “re-examine.” In her separate opinion in Haley, she did not revisit this inconsistency. She simply argued that her position in Alonzo, which the Court adopted sub silentio in Haley, ought to be extended. And in Volosen, that is just what the Court did, but again without ever addressing the apparent conflict with, much less overruling, our binding precedent in Rochelle.
In Rochelle we held that when the State (the prevailing party in the trial court on the facts of that case) raises an issue for the first time in a motion for rehearing, the court of appeals is not obligated to address the issue, and if it does not, there is no “decision” with respect to that issue for the State to raise in a petition for discretionary review.13 That is precisely what happened in the instant case; Rochelle is directly on point. In its reply brief on direct appeal, the only argument that the State made in response to the appellant’s point of error on appeal was that Article 42.08(b) of the Code of Criminal Procedure did not apply to him, since he was not in the custody of the penitentiary at the time of his escape and was therefore not an “inmate” in contemplation of that provision.14 The State made no other argument, and was content to accept that Fullbright v. State,15 upon which the appellant principally relied, was controlling. Then, for the first time in its motion for en banc rehearing, the State made a number of new arguments, including the argument that the appellant should be es-topped from claiming that an illegally lenient punishment, of which he has enjoyed the benefits, is void. The court of appeals did not see fit to grant rehearing.16 Under Rochelle, then, which has never been overruled, there is nothing for this Court to review.17
I can agree that Rochelle ought to be overruled to the extent that it applies to
. E.g., Arline v. State, 721 S.W.2d 348, 353 n. 9 (Tex.Crim.App.1986); Lee v. State, 791 S.W.2d 141, 142 (Tex.Crim.App.1990); Holland v. State, 802 S.W.2d 696, 700-01 (Tex.Crim.App.1991); George E. Dix & Robert O. Dawson, 43A Texas Practice: Criminal Practice and Procedure § 44.21, at 858-59 (2d ed.2001).
. E.g., Barfield v. State, 63 S.W.3d 446, 449 n. 6 (Tex.Crim.App.2001).
. If the court of appeals failed to render a decision on an issue properly brought before it, we will sometimes grant discretionary review to determine whether the court of appeals erred in failing to decide the issue. But when we find error on the part of the court of appeals in these instances, we remand to the court of appeals rather than reach the merits ourselves. E.g., Lee v. State, supra; Dix & Dawson, supra, § 44.23, at 862-63.
. E.g., Owens v. State, 827 S.W.2d 911, 917-18 n. 7 (Tex.Crim.App.1992); Dix & Dawson, supra, § 44.21, at 859. See also State v. Consaul, 982 S.W.2d 899, 902 (Tex.Crim.App.1998) (Price, J., concurring) (“This court’s jurisdiction is limited to review of decisions by the courts of appeals.“).
. 158 S.W.3d 515 (Tex.Crim.App.2005) (Keller, P.J., dissenting).
. Archie v. State, 221 S.W.3d 695, 698 (Tex.Crim.App.2007); Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex.Crim.App.1997).
. Alonzo v. State, supra, at 518 (Keller, P.J., dissenting).
. Id. at 519.
. Haley v. State, 173 S.W.3d 510, 515 (Tex.Crim.App.2005).
. Id. at 519 (Keller, P.J., concurring).
. 227 S.W.3d 77, 80 (Tex.Crim.App.2007).
. 791 S.W.2d 121 (Tex.Crim.App.1990).
. Id. at 124-25; See also Sotelo v. State, 913 S.W.2d 507, 509 (Tex.Crim.App.1995).
.
. 818 S.W.2d 808 (Tex.Crim.App.1991).
. Rhodes v. State, 175 S.W.3d 348, 355 (Tex.App.-Houston [1st] 2004).
. Two justices dissented to the denial of the en banc rehearing. Id. at 356-59. Those justices did not address the State’s estoppel argument. Instead they addressed another issue altogether, viz., whether Fullbright should control the question whether an order that illegally fails to cumulate sentences renders the sentence “void.” The dissenters believed that it should not, and that, absent a void sentence, the prior conviction was available to enhance the appellant’s instant punishment. Even if it could somehow be said that, because two justices filed a written dissent, the court of appeals “decided” this question when it denied rehearing, the issue thus “decided” is still not the same as the one the majority decides today.
. In retrospect, however, I think we should have remanded the cause in Haley to the court of appeals to address the issue of error preservation in the first instance, rather than deciding it ourselves for the first time on discretionary review. See note 3, ante.
. If in fact Rochelle has been de facto overruled in its entirety, and Volosen now controls, such that the party that prevails in the trial court but loses on appeal can now bring any issue it wants in a petition for discretionary review, regardless of whether the court of appeals was called upon to decide that issue on appeal, I can only presume that in practice the Court will apply that holding even-hand-edly to both the State and criminal defendants.