Case Information

*1 PD-1510-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/20/2015 4:42:17 PM Accepted 11/20/2015 5:10:45 PM IN THE COURT OF CRIMINAL APPEALS OF TEXAS ABEL ACOSTA CLERK EX PARTE $

$ No. $ $

ANDRE DEROSIER $ STATE'S PETITION FOR DISCRETIONARY REVIEW FROM TFIE SECOND DISTRICT OF TEXAS AT FORT WORTH IN CAUSE NUMBER O2-I5.OOIOO-CR AND

FROM TFIE 3íTTHJUDICIAL DISTRICT COURT DENTON COUNTY, TEXAS IN CAUSE NUMBER F-2002-0330-E PAUL JOHNSON Criminal District Attorney Denton County, Texas CATHERINE LUFT Assistant Criminal District Attomey Chief, Appellate Division LARA TOMLIN Assistant Criminal District Attorney East McKinney, Suite 3100 Denton, Texas 76209 State Bar No.

(e40) 34e-2600 FAX (940) 349-2601 lara.toml in@dentoncounty. com *2 IDENTITY OF PARTIES AND COUNSEL ANDRE DEROSIER Appellant

F'RED MARSH ED\ryARD NOLTER South Woodrow Denton, Texas 76205 APPELLATE COLINSEL CARY PIEL West Oak Suite 302

Denton, Texas 76201 TRIAL COLINSEL THE STATE OF TEXAS Appellee

PAUL JOHNSON Criminal District Attorney CATHERINE LUF'T Assistant Criminal District Attorney Chief, Appellate Division LARA TOMLIN Assistant Criminal District Attorney State Bar No. 24075169 1450 East McKinney, Suite 3100 Denton, Texas (e40) 34e-2600 FAX (e40) 34e-27 sr lara.toml in@dentoncounty. com APPELLATE COUNSEL MATTHE\ry SHOVLIN ANTHONY PAUL Assistant Criminal District Attorneys TRIAL COLINSE,L *3 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL I INDEX OF AUTHORITIES V STATEMENT REGARDING ORAL ARGUME,NT ^[1] STATEMENT OF THE CASE ^[1] STATEMENT OF PROCEDURAL HISTORY 2 QUESTIONS PRESENTED FOR REVIEW 2

If a defendant agrees to plead to a lesser offense, that is

not actually a lesser included offense, indicted offense

over which trial court has proper subject-matter jurisdiction,

can a defendant lafer attack bargained-for judgment based subject-matter jurisdiction claim? (C.R. 4-6,10-24.9I-94; R.R. al.5-42; State's Exhibit l-3) 2 ARGI-IMENT J

Appellant wanted to plead to a lesser offense, knowingly

and willingly pleaded lesser offense that was lesser-included offense, and enjoyed benefits lesser conviction he

agreed years ........... 3 The Fort Worth Court Appeals opinion did not consider trial court had jurisdiction of Appellant's originally-charged

case, and lesser offense was agreed to by the parties after jurisdiction had already been established..........,.. .,............,.4 The Fort Worth Court Appeals dismissed applicability

of Rhodes Murray, while neither case addresses the

specific facts in this case, both cases deal issues equity

in relation erroneous judgment

ii *4 Rhodes held that appellant is estopped from collaterally

attacking too-lenient judgments, and may or may not be

estopped in subject-matter jurisdiction claim... 5 The Murray opinion assumed State not barred from

advancing estoppel subject-matter jurisdiction claim 7 Heilman did not address this situation, and interprets Rhodes very differently than Murray...... 8 The case law regarding estoppel subject-matter

jurisdiction murky, but the reasoning case law

suggests estoppel can apply

Even if this Court finds no holdings supporting estoppel

barring subject-matter jurisdiction claim, this Court

should address issue as it has been specifically decided ..........9 Because Fort Worth Court of Appeals' blind reliance subject-matter jurisdiction, it did not take into account facts case, where Appellant agreed benefitted

from his bargained-for sentence and where Appellant should be

barred from his collateral attack for subject-matter jurisdiction.....,.....,.'......... l1 t4 PRAYER FOR RELIEF l5 CERTIFICATE OF COMPLIANCE l5 CERTIFICATE OF SERVICE APPENDICES:

A Indictment

B Judgment

C Order Denying Application Writ Habeas Corpus

lll *5 D Findings of Fact Conclusions Law

E Ex parte Derosier, No. 02-15-00100-CR, 2015 Tex. LEXIS I1155, *5 (Tex. App.-Fort Worth Oct.29,2015,

pet. filed)

IV *6 INDEX OF AUTHORITIES Cases

DeDonato v. State 819 S.W.zd 164 (Tex. Crim. App. 1991) 9,l2 Ex parte Derosier

No. 02- 15-00100-CR, 2015 Tex. App. LEXIS I I I 55

(Tex. App.-Fort Worth Oct.29,2075, pet. filed) passim Ex Parte Heilman 456 S.W.3d 159 (Tex. Crim. App. 2015) t2 .........8 Ex Parte Sledge 391 S.W.3d 104 (Tex. Crim. App. 2013) 9,l2 Hall v. State 225 S.W.3d 524 (Tex. Crim. App. 2007) . 10, I l, 12 Marin v. State 851 S.W.2d275 (Tex. Crim. App. 1993) .......'..... 11 McKínney v. State 10,12

207 S.W.3d366 (Tex. Crim. App. 2006) Murray v. State 302 S.V/.3d 874 (Tex. Crim. App. 2009) ......passim People v. Wehb

186 Cal. App. 3d 401 (Cal. App. 3d Dist. 1986)...... Prystash v. State 3 S.W,3d (Tex. Crim. App. 1999) 71,12 Rhodes v. State 240 S.W.3d (Tex. Crim, 2007) ......passim

v *7 IN THE COURT OF CRIMINAL APPEALS OF TEXAS EX PARTE $

$ No. $ $

ANDRE DEROSIER $ STATE'S PETITION FOR DISCRETIONARY REVIEW TO TI{E HONORABLE COURT OF CRIMINAL APPEALS:

Comes now the State, by and through its Assistant District Attorney, and respectfully urges this Court grant discretionary review above named cause.

STATEMENT REGARDING ORAL ARGUMENT Because issue presented this case - whether estoppel can bar a complaint subject-matter jurisdiction when there has been negotiated plea bargain - has been addressed Court, State believes oral argument would be helpful courts State Texas and parties. The State therefore requests oral argument. CASE

STATEMENT OF Appellant indicted six counts indecency child later pleaded guilty to a class A terroristic threat November 13, 2002 (see Appendix A [Indictment]; Appendix B [Judgment]). Twelve years after *8 Appellant pleaded, he complained that the trial court did not have subject-matter jurisdiction over the terroristic threat charge because it not a lesser-included offense to the original charges and therefore the district court did have jurisdiction (C.R. at 6, 10).

STATEMENT OF PR EDURAL HISTORY Appellant hled application for writ of habeas corpus on December , 2014, the trial court held a hearing on the application on February 5, 2014, trial court denied Appellant's application on February 26,2015, and the trial court filed written findings of fact and conclusions of law on May 12,2015 (2 R.R. at l; C.R. at l0; Appendix C fOrder Denying Application for Writ Habeas Corpusl; Appendix D fFindings Fact and Conclusions Law]). Appellant appealed trial court's ruling, Fort Worth Court Appeals handed down its opinion on October 29, 2015, Court rendered reversal remanded case trial court (Appendix E lEx parte Derosier, No. 02-15-00100-CR, Tex. LEXIS 11155, *5 (Tex. App.-Fort Worth Oct. 29, 2015, pet. f,rled)l). No motions rehearing were filed. F'OR REVIEW

OUESTION If a defendant agrees plead lesser offense, that is not actually a lesser included offense, an indicted offense over which the trial court has proper subject-matter jurisdiction, can defendant later attack bargained-for judgment based a subject-matter *9 jurisdiction claim? (C.R. at 4-6, 10-24. 91-94; R.R. aL 5-42; State's Exhibit 1-3).

ARGUMENT The Fort Worth Court of Appeals answered an important question of law, regarding estoppel and plea agreements, that Court has not yet addressed.

Further, the Fort Worth Court of Appeals has made an inequitable decision.

Appellant wanted to plead to a lesser offense, knowingly and willingly pleaded to a lesser offense was a lesser-included offense, and enjoyed the benefits of the lesser conviction he agreed to for years.

Appellant was indicted for six counts of indecency with a child, the State originally offered eight years of deferred adjudication, and Appellant's attorney indicated that Appellant would plead to a class A assault (Appendix A; C.R, at 4; State's Exhibit 1,2). Appellant took the felony case hrial, and during a recess on second day trial both sides reached a plea agreement, trial court advised Appellant his rights, the trial court granted motion amend indictment and dismissed six counts indecency with a child, and Appellant pleaded guilty to class A terroristic threat charge (C,R. at 6,31,34,36; C.R. Supp. at 10).

The "Plea Bargain Agreement" reached by Appellant and State, appears to have originally been offense simple "assault," offense was crossed out "terroristic threat" added hand (C.R. 38). Appellant agreed plead no contest, and receive punishment one day, one day of *10 time credit, thus not having to serve any additional time in jail or complete any kind of community supervision (C.R. at 38).

Twelve years after Appellant knowingly pleaded to the terroristic threat charge order to avoid facing the possible consequences proceeding with trial on the six counts indecency with a child, Appellant complained that the trial court did not have subject-matter jurisdiction over the terroristic threat charge, because it was not a lesser'included offense to original charges, and therefore district court did not have jurisdiction (C.R. at 6, 10). The Fort Worth Court Appeals opinion did not consider trial court had jurisdiction of Appetlant's originally-charged case, lesser offense was agreed by the parties after jurisdiction had already been established.

The Fort Worth Court Appeals stated "[i]t axiomatic thal subject-matter jurisdiction cannot be conferred agreement parties" (Appendix E at *5). Here, the district court had jurisdiction of the six counts of indecency child (Appendix A). Therefore, jurisdiction was established and the plea agreementothatthe case resulted in, not situation in which Appellant was being unwillingly prosecuted incorrect court (Appendix A; C.R. at 6,31, 34, 36,38; C.R. Srpp. at 10). Appellant agreed lesser charge, benefitted greatly 12 years from lesser charge, and did object subject-matter jurisdiction until 2Ol3 (Appendix A; C.R. 6,31,34,36, 38; C.R. Supp, at l0).

The Fort Worth Court of Appeals dismissed the applicability of Rhodes and Murray, while neither case addresses specific facts in this case' both cases deal with issues of equity in relation to erroneous judgments.

The Fort Worth Court of Appeals stated that State's reliance Muruay and Rhodes was misplaced, and while facts of these cases are not exactly like the current case, both cases address equitable principle estoppel in context of an appellant attacking a judgment a too-lenient sentence, See Murray v. State, 302 S,W.3d (Tex. Crim. App. 2009); Rhodes v. State,'240 S.W.3d 882 (Tex.

Crim. App. 2007). This is akin to current case in which Appellant was convicted lesser charge, that was not actually a lesser-included offense, and that conviction lenient void. Derosier,z}ls Tex. App. LEXIS 11155.

Rhodes held an appellant is estopped from collaterally attacking too-lenient judgments, and may or may not be estopped in subject-matter jurisdiction claim.

The Fort Worth Court Appeals stated that. Rhodes inapplicable the facts this case and found that there was "nothing in Rhodes suggest estoppel-like doctrines apply when a court does not have subject-matter jurisdiction over a bargained-for judgment." Derosier,20l5 Tex. LEXIS 11155, at*6-7. But Rhodes, Court found that "[a] defendant

who has enjoyed benefits agreed judgment prescribing too-lenient punishment should be permitted collaterally attack that judgment on a later date on the basis the illegal leniency." Rhodes, S.W.3d 892. Here, *12 Appellant is collaterally attacking an agreed-to void judgment that sentenced him to a too-lenient punishment that Appellant enjoyed l2 years. Although there no indication that the parties entered into a plea agreement in Rhodes, case addressed the inequities similar to current situation Fort Worth Court of Appeals wrongly found Rhodes inapplicable. See Rhodes,240 S.W.3d at 882-86.

Rhodes states that the only exception to estoppel judgment is for challenges subject-matter jurisdiction, but does not address whether subject-rnatter jurisdiction exception the other forms estoppel discussed by the court. Id. at 891-92. The case also includes lengthy discussion the inequity defendant entering plea agreement that imposes an illegal sentence, benefiting from and quietly enjoying sentence, and then attacking the judgment at alater date when it is in his interest, despite his part procuring the lenient sentence. Id. at 891-92. Further, this Court found bhat Rhodes held that "a 'challengef ] subject-matter jurisdiction the court rendering judgment' may be exempt from estoppel," showing that Court may take the hardline stance against estoppel subject-matter jurisdiction context the Fort Worth Court Appeals has interpreted. See Murray,302 S.W.3d at n.42 (enrphasis added); Rhodes,240 S.W.3d 891; see also Derosier,2015 Tex. App.LEXIS I I155, at*5,14.

The Murray opinion assumed the State was not barred from advancing estoppel a subject-matter jurisdiction claim.

In Murray, this Court assumed without deciding "that the State is not barred by subject-rnatter jurisdiction defect from advancing an estoppel claim." Murray,302 S.W.3d at 882; see Derosier,2015 Tex. App, LEXIS 11155, at*7.

Yet, the Fort Worth Court Appeals found that Murray also suggested nothing to support that estoppel-like doctrines apply when court lacks subject-matter jurisdiction over bargained-for judgment. Derosier, 2015 Tex. LEXIS I 155, at *7 -8.

Murray applicable as estoppel did not apply that case only because Murray objected. Muruay,302 S.W.3d at 882. This Court found that estoppel did not apply because Murray did not accept the benefits his conviction instead objected to lesser offense was actually a lesser-included offense the felony which he indicted. Murray,302 S.W.3d 882. Here, there was no such objection. Murray objected plea agreement when trial court still had the power reject the plea agreement, and the Court stated without deciding objection could have only been defeated "a showing bad faith on defèndant's part or substantial prejudice suffered State." Murray, S.W.3d a1883. Here, the State is substantially prejudiced as jeopardy attached charge, 12 years have passed, there was no objection from Appellant *14 when the State could have remedied any issue Appellant had pleading a lesser offense.

Heilman did not address this situation, and interprets Rhodes very differently than Muruay.

In its opinion in this case, the Fort Worth Court Appeals cited Heílman, stating that it worked against State's argument because the case stated that "estoppel does not apply when [a] court lack[s] jurisdiction." See Derosier, 2015 Tex. App. LEXIS I ^[1] 155, at * I l; see also Ex Parte Heilman, 456 S.W.3d 159, 166-167 (Tex. Crim. App. 2015). But, this Court cited Rhodes in statement, and as discussed, suprq, Rhodes held that estoppel did not apply only estoppel judgment, did not involve a plea agreement, and discussed inequity an appellant trifling with courts, as present in this case. See Rhodes, S.W.3d at 891-92; see also People v Webb, Cal. 3d 401,412 (Cal. App. 3d Dist. 1986). Heilman did not address the specific situation here, this statement by the court is contrast Murray opinion that more closely addressed situation assumed State was barred from estoppel claim context subject-matter jurisdiction. See Muway,302 S.W.3d a|882; see also Heilman,456 S.W.3d 166-67 *15 The case law regarding estoppel and subject-matter jurisdiction is murky' but the reasoning of case law suggests that estoppel can apply.

The Fort \Morth Court Appeals is correct that this was Appellant's first application writ habeas co{pus, but the State discussed Sledge not argue it was not his first application, but to point out that abar to estoppel in the context of subject-matter jurisdiction is not so axiomatic, as there have been cases where estoppel not barred a subject-matter jurisdiction claim. See Ex Parte Sledge, 391 S.W.3d 104, 108 (Tex. Crim. App. 2013); see also DeDonato v. State,8l9 S.W.2d 164, 166-67 (Tex, Crim. 1991). The concuffence in DeDonato even pointed out the majority in that case oveffuled "the basic and long-held principle a lack of jurisdiction will render a conviction void merely voidable." DeDonato, S.tM.2d at 167 (an appellant waived claim lack subject-matter jurisdiction where information did not contain the elements needed discern the level offense she committed).

Even if this Court finds no holdings supporting estoppel barring subject- matter jurisdiction claim, this Court should address issue as it has not been specifically decided.

This Court has not specifically decided issue under these circumstances. But, as discussed supra, has suggested estoppel issue in plea-bargain case which agreed-to charge lacks subject-matter jurisdiction open question. See Murray,302 S.W.3d n.42; Rhodes,240 S.W.3d at 891. The topic has been more specifically discussed conculrences dissents of this Court.

For example, Presiding Judge Keller stated in her dissent \n Hall that, if an appellant requests an action, then he is barred by estoppel from complaining of that action; when appellant invokes benefit a lesser offense by not objecting to that lesser offense, he should be estopped from later complaint, Hall v, State, 225 S.W.3d 524, 537-38 (Tex. Crim. App. 2007) (Keller, C.J., dissenting).

Deciding otherwise allows a defendant acquiesce court action that benefits him, convicting him of a lesser crime than charged, which not a lesser-included offense, then allows defendant later successfully challenge that the lesser charge he should have never been given. Id. Additionally, the Murray court stated that her McKinney concuffence, Presiding Judge Keller "suggestfed] that estoppel could prevent defendant from challenging a district court judgment on misdemeanor offense not fact included in the indictment if he requested submission offense so long as the courl had subject-matter jurisdiction over the charged offense." Murrøy,302 S.W.3d at 882; see McKinney v, State, S.W.3d 366, 37 6 (Tex. Crim. 2006) (Keller, P.J. concurring). Presiding Judge Keller termed situation "beneficial acquiescence." Hall, S.V/.3d at 538 (Keller, C,J., dissenting). Ifere, the district court retained jurisdiction over charged offense Appellant bargained agreed judgment lesser, but lesser-included, offense (Appendix A; C.R. at6,31,34,36,38; C.R. Supp. 10).

Judge Hervey also addressed inequity of appellant, asking for a lesser offense not a lesser-included offense, her Hall dissent". Id. at (Hervey, J, dissenting). When a conviction on a lesser charge that is not actually a lesser-included offense is void, it "permitlsl defendant to request beneficial lesser charge and, if acquitted of greater charge and convicted of the defense-requested lesser charge, successfully complain for first time appeal such charge should never have been given." Id. (Hervey, J. dissent). Judge Hervey found fhal Marin and Prystash "do support such an unusual result." Id. (Heweyo J., dissent); see Prystash v. State,3 S.W.3d 522 (Tex. Crim.

App. 1999); Marin v, State,851 S.W.2d275 (Tex. Crim. App. 1993). Under the Fort Worth Court of Appeals opinion, case has "such an unusual result." See id. (Hervey, J., dissenting).

Because Fort Worth Court of Appeals' blind reliance on subject-matter jurisdiction, it did not take into account the facts in this case, where Appellant agreed benefitted from his bargained-for sentence where Appellant should be barred from his collateral attack for subject-matter jurisdiction.

Appellant was advised his rights his attorney, admonished by the court, and aware his rights when he agreed the one-day confinement offer on terroristic threat charge without objection (C.R. at 6, 31, 38, 40, 43; C.R. Supp. 10). Appellant enjoyed the benefits the bargain years, and now complaining the error he agreed to, order try to invalidate the lesser

1l *18 conviction have no conviction for any charge. See DeDonøto,819 S.W.2d at 166-67; Murroy, 302 S.W.3d at 882; Rhodes, 240 S,W.3d at 891-92; Hall, 225 S.W.3d at 537-40; McKinney,207 S,W.3d at 376 (Keller, C.J., concuning); Prytash,3 S.W.3d at 531.

The Fort Worth Court Appeals relied on subject-matter jurisdiction too much this case, without looking at what actually happened in this case - Appellant was indicted, the district court had subject-matter jurisdiction, and for his benefit he pleaded to a misdemeanor instead continuing his trial the felony (Appendix A; C.R. at 6, 31, 34, 36, 38; C.R. Supp. at l0). It is an inequitable decision for this conviction not stand. See Derosier, Tex. LEXIS 11155, at *5-7. Appellant is barred estoppel from now

complaining subject-matter jurisdiction. See Sledge, S.W.3d at 108; Murray,302 S.W.3d 882; Rhodes,240 S.W.3d at 891-92; McKinney, 207 S.W.3d at 376 (Keller, C.J., concurring).

Allowing attack unjust, and it enables appellant use subject-matter jurisdiction as a sword attack a plea bargain he agreed to, instead shield to protect his rights against void judgments imposed by the State andlor judiciary .' See Heilman,456 S.W.3d aT" l7l; Rhodes,240 S.W.3d af 891-92. This subject-matter jurisdiction issue which the prosecutor walked into the district court misdemeanor case. Here, Appellant knowingly pleaded to

l2 lesser offense, and got the benefit lesser offense, that actually a lesser-included offense. And now, the State prejudiced as Appellant enjoyed the benef,rts lesser charge he agreed years, since jeopardy has attached, State cannot cure any elror it may have been able cure the time of plea.

Accordingly, State requests Court reverse Fort Worth Court of Appeals opinion reinstate trial court's judgement.

PRAYER FOR RELIEF Accordingly, State Texas prays that the Court Criminal Appeals grants review case permit full briefing issues presented.

Respectfully submitted, PAUL JOHNSON Criminal District Attorney Denton Texas District Attorney sistant 1450 East McKinney, Suite 3100 Denton, Texas 76209 State Bar No.

(e40) 34e-2600 FAX (940) 349-27sl lara.tomlin@dentoncounty. com r4 *21 CERTIFICATE OF' COMPLIAN CR, The State certifies that State's Petition for Discretionary Review the instant cause contained a word count 2582, said count being generated by the computer program Microsoft Word that was used to the document.

CERTIFICATE OF SERVICE True copies State's Petition for Discretionary Review have been sent United States mail, postage prepaid, appellate attomey Appellant, Fred Marsh Ed Nolter, 101 South Woodrow, Denton, Texas 76205, and the State Prosecuting Attorney, Lisa McMinn, Post Office Box 12405, Austin, Texas 78711, on the ay of November, 2015.

l5 *22 APPENDIX A

[Indictment]

L CAUSENO. l0 J:iLEÐ BOND: ¡ri1 - âillütûgtz-zt_at

DEFENDANT: ANDRE DEROSIER

CHARGE: INDECENCY WnH A CHILD (6 COUNTS) Í ;iì''' ' ' " - i!ii\Gt.yr

CO-DEFENDANT: NONE !!Plrr v

V/ITNESS: IIIV. GEHRKE, LPD #01-07995

TRUE BILL OF INDICTMENT II.JTIIE NAME AND BY AUTHORITY OF THE STATE OF TEXAS COUNT I

THE GRAND JURORS, in and for the County of Denton, State of Texas, duly organized,

impaneled, and sworn as such, the January Term, 4.D., 2002, of the District Court of the 2l lth

Judicial District in and said county and state, upon their oaths, present in and to said Court that

ANDRE DEROSIER, who hereinafter styled defendant, on or about the 23rd day of September, 2000,

and anterior to presentment of this lndictment, in county and state aforesaid, did then and there,

with intent arouse or gratify the sexual desire ofthe said defendant, intentionally or knowingly

engage in sexual contaot with Nydirah Derosier, by touching the genitals of Nydirah Derosier, child

younger than years age and not the spouse of the defendant;

COUNT II

And the Grand Jurors aforesaid, duly selected, impaneled, sworn and charged at said term ofsaid

cou¡¡ as aforesaid, upon their oaths further present in and said court that ANDRE DEROSIER, on or

about the 20th day January, 2001, and anterior to presentment of this indictment, in the County of

Denton and State ofTexas, did then and there, with the intent to arouse or gradry the sexual desire ofthe

said defenda¡t, intentionally or knowingly engage sexual contact Nydirah Derosier, by touching

the genitals of Nydirah Derosier, child younger than l7 years age and not the spouse the

defendant;

COI.JNT III

And the Grand Jurors aforesaid, duly selected, impaneled, sworn charged at said term ofsaid

court as aforesaid, upon their oaths further present said court that ANDRE DEROSIER, on or

about 17th day February, 2001, and anterior to presentment of this indictment, in the County

cfr:ct,,,,iL *24 DEFBNDANT: DEROSIER PAGE

ofDenton and State ofTexas, did then and there, with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly engage in sexual contact with Nydirah Derosier, by

touching the genitals ofNydirah Derosier, a child younger than ^[17] years ofage and not the spouse ofthe

defe¡rdant;

COUNT IV

And the Grand Jurors aforesaid, duly selected, impaneled, swom and charged at said term ofsaid

court as aforesaid, upon their oaths further presenl in and to said court ANDRE DEROSIER, on or

about the lTth day of March, 2001, and anterior to the presentment of this indictment, in the County of

Denton and State ofTexas, did then and there, with the intent to arouse or gratify the sexual desirc ofthe

said defendant, intentionally or knowingly engage in sexual contact with Nydirah Derosier, by touching

the genitals ofNydirah Derosier, child younger than years ofage and not the spouse ofthe

defendant;

COUNT V

And the Grand Jurors aforesaid, duly selected, impaneled, swom and charged at said term of said

court as aforesaid, upon their oaths further prçsent in and said court that ANDRE DEROSIER, on or

about 2lst day of April, 2001, and anterior to the presentment of this indictment, in the County of

Denton and State of Texas, did then and there, with the intent arouse or gratify sexual desire of the

said defendant, intentionally or knowingly engage in sexual contact with Nydirah Derosier, touching

the gonitals of Nydirah Derosier, child younger than ^[17] years age and the spouso the

defendant;

couNT vI

And the Grand Jurors aforesaid, duly selected, impaneled, sworn charged at said term said

couÍ as aforesaid, upon their oaths further present said court that ANDRE DEROSIER, or

about the 21st day of April, 2001, and anterior to the presentment of this indictment, in the County of

Denton and State Texæ, did then and there, the intent to arouse or gratify the sexual desire the

said defendant, intentionally or knowingly engage sexual contact with Nydirah Derosier, by touching

the breast ofNydirah Derosier, child younger than years ofage and not the spouse ofthe defendant;

against the peace and dignity ofthe State,

BRTICE ÀA(IKS Foreman Jury

CRMINAL DISTRICT ATTORNEY OF DENTON COUNTY, TEXAS

APPENDIX B

IJudgment] *26 FILED

AT=- o'clocK _M NOv 1 2002 NO. F-2002-0330-E IN Tç{B E 6lãIffi ftmmbtÙ¡o ru, rrxns STATE OF TEXAS BY DISTRICT COURT OF

vs. DENTON COI-JNTY, TEXAS A.NDRE DEROSIER : Novernber 13,2002 Date of Judgment : Lee Gabriel Judge Presiding: Attomey for Matthew Shovlin Attomey for Piel Defendant Paul State TERRORISTIC THREAT Offense : (l COUNT) Date Offense Convicted of April 21,2001 : Class A'Misd. Committed Degree Charging No Contest Plea lndictment Instrument Findings On Plea to N/A : N/A Enhancement Enhancement

Findings on Use : N/A Deadly WeaPon : $251,00 Court Costs Date Sentence And any additional wanant fees incurred : November 13,2002 Imposed PunishmençPlace Confinement (l) : COUNTY DAY : JAIL ONE to Date Commence November :

Total amount : oNE (l) DAY restitution Time Credited

Restitution Be Paid To: Name:

Address:

þlrr.6252-l3a : N/A Victim's No Thedefendant,ANDREDERoslER,havingbeenindictedintheaboveentitledand

numbered cause felony offense INDECENCY WITH A CHILD (6 COUNTS)' as alloged indictment, and cause being this day called, the State appeared her Assistant criminal District Attorney, Anthony paul and/or Matthew shovrin, and the defendant appeared in person and his counsel, Cary Piel, also being present and both parties announced ready the defendant person in writing in open court having waived his right trial by jury,suchwaiverbeingwiththeconsentandapprovaloftheCourtandnowenteredofrecordon *27 the minutes of the Court and such waiver being with the consent and approval of the Criminal District Attorney of Denton County, Texas, in writing, signed by him, and filed in the papers of this cause before the defendant entered his plea herein, the defendant was duly anaigned and in open Court pled no contest to the charge of TERRORISTIC THREAT; thereupon the defendant was admonished by the Court of the consequences of the said plea; and defendant persisted in entering said plea, and it plainly appearing to the Court that the said defendant is mentally competent and that he is uninfluenced in making said plea by any consideration of fear or by any persuasion or delusive hope of pardon prompting him to confess his guilt, the said plea was accepted by the Court and is now entered of record as the plea herein of the defendant. The defendant in open court, having waived the reading of the indictment, and in writing having waived the appearance, confrontation and oross-examination of witnesses, and agreed the evidence may be stipulated and consented to the introduction of testimony by afflrdavits, written statements of witnesses and any other documentary evidence, and such waiver and consent having been approved by the Court in writing and filed in the papçrs of the cause; and the Court having received from the Denton County Probation Department written presentence investigation report, complying all the requirements set forth in Article 42,12, Section of the Texas Code of Criminal Procedure; and, the Court having hea¡d the defendant's waiver of the reading of the indictment, the defendant's plea thereto, the evidence submitted, and the àrgument of counsel, is of the opinion lrom the evidEnce submitted that the defendant is guilty of TERRORISTIC THREAT.

IT IS THEREFORE FOLIND AND ADJUDGED BY THE COURT, that thc SAid defendant is guilty of the misdemeanor offense of TERRORISTIC THREAT, and that the said defendant committed said offense on the 21st day of April, 2001, and that the punishment is hereby assessed at confinement in the County Jail of Denton County, Texas for ONE (1) DAY, that the defendant be punished in accordance with same and that the State of Texas do have and reoover of the said defendant all costs this prosecution expended, for which execution will issue.

THEREUPON the defendant was asked the Court whether he had anything to say as why said sentence should not be pronounced against him, and he answered nothing in bar thereof, and it appearing the Court that the defendant is mentally competent understanding the English language, the Court, the presence of said defendant and his counsel, proceeded to pronounce sentence against him as follows:

IT IS THE ORDER OF THE COURT that the said defendant, who has been adjudged by Court to be guilty TERRORISTIC THREAT, whose punishment has been assessed by Court confinement in tho County Jail Denton County, Texas, ONE (1) DAY in accordance with provisions of law said State, and said defendant remanded jail until said Sheriff can obey direction sentence,

IT IS FURTHER ADruDGED Al\lD DECREED by this Court that the sentence pronounced herein shall begin date defendant granted day credit for time served.

SIGNED this the 13th day Novernber,2002.

E PRESIDIN RECEIVED COPY:

ANDRE DEROSIER

DEFEI.IDÆ.iT

DATE:

I/.rll Tl.lE PEnSON wHO l'1r;. :|,rän iliis -ltJDG¡'^n¡'¡f ,f:!!i) , ,;;l ::,:: í'.:"':.1:;3D C:l 'i':: tl- lj - OL

.J FINGERPRINT FROM

FINGER OF DEFEND ANT

APPENDIX C [Order Denying Application for Writ Habeas Corpus] *30 C¡use No. X'-2002-0330-e (whcl) EX PARTE IN THE 367TH JTJDICIAI $

s DISTRICT COURT OF

$ $ ANDRE DEROSIER DENTON COUNTY, TEXAS $ oRppR /ô (' *% The Cor¡rt denies Applicant's grounds relief.

SIGNED this, ,n 20-.day February 2015.

+ nn4,

JUDGE PRESIDING *31 APPENDIX D

[Findings Fact Conclusions of Law] *32 Fau>¡,- Dðlo"Luhc(

CauseNo¡W

EX PARTB IN THE 367,, $

s DISTRICT COU

$ $ ANDRE DEROSIER DENTON COUNTY, $ STATE'S MEMORANDUM AND PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW MEMORANDUM

The State submitting these proposed findings and conclusions for this Court's consideration requests this Court adopt these findings and conclusions. An order adopting the State's findings and conclusions will be transmitted to this Court in no less than seven days. Should this Court wish craft its own fìndings and conclusions, rather than adopt the State's, a copy of this document has been sent via email to Court.

PROPOSED FTNDINGS OF FACT AND CONCLUSIONS OF LAW The Court, having considered allegations contained Applicant's first Application for Writ Habeas Corpus under a¡1icle I 1.09 and answer filed by State, makes following findings fact conclusions law:

FINDINGS OF FACT l. Applicant was indicted six counts Indecency 'With Child on March 7,2002 (see Applicant's Brief, Exhibit l). Applicant's jury trial began on November 12,2002, jury selected and sworn, Applicant was arraigned, and Applicant pled not guilty to all counts (see Applicanl's Brief, Exhibit 2).

2. On second day Applicant's jury trial, plea bargain was reached (Applicant's Brief, Exhibit 2). This Court advised Applicant of his rights, State made oral motion amend the Indictment that was granted this *33 Court, the State made a motion to dismiss the six counts of Indecency V/ith a Child that was granted by Court, and Applicant pled guilty to, and was found guilty ol Terroristic Threat, a misdemeanor offense (Applicant's Brief, Exhibit 2; see Applicant's Brief, Exhibits 3,4,5,9).

3. Applicant did object to the motion to amend the indictment that was presented in open court, and his attorney signed off on the State's motion to that effect (Applicant's Brief, Exhibits 2-3).

4. The "Plea Bargain Agreement" reached by Applicant and the State appears to have originally been offense of "assault," and that offense was crossed out and "terroristic threat" was added (Applicant's Brief, Exhibit 6).

5. Applicant agreed to plead no contest and receive a punishment of one day with one day time credit, thus not having to serye any additional time in jail or any kind of community supervision (Applicant's Brief, Exhibit 6).

6, Applicant and his attorney signed "'Waiver Jury," in which Applicant agreed he was advised by his attorney consequences of this plea, waived his right to an indictment, and pled no contest to Terroristic Threat (see Applicant's Brief, Exhibit 7).

7. Applicant and his attorney also signed "Court's Admonition of Statutory and Constitutional Rights and Defendant's Acknowledgment" (see Applicant's Brief, Exhibit 8), There he acknowledged that he charged second-degree felony Indecency With Child canied punishment two to twenty years prison up a $10,000 fine, but the punishment for thc new charge, Terroristic Threat, was only up one year jail up a $4,000 fine (Applicant's Briet Exhibit 8), This document also admonished Applicant he had right to be tried indictment retumed grand jury (Applicant's Brief, Exhibit 8),

{,t¡ryfrl*t'r e !tr.4

, CONCLU,S/ON,S OF LAW I, Applicant waived his right a grand jury indictment by agreeing to the State's amendment. See Teal v. State,230 S.W.3d 172, 174-7s (Tex. Crim.

4pp.2007).

2. Although a district court typically does not have jurisdiction over misdemeanor offenscs Court Criminal Appeals has held that subject-matter jurisdiction cannot be conferred by agreement and any order entered a court having no jurisdiction is void, Court of Criminal Appeals has found that "a defendant cannot enter a plea agreement that imposes an illegal sentence, benefrt from that sentence, and then attack judgment later when it is suddenly in his interests do so," that "[a] defendant who has enjoyed benefits of agreed judgment prescribing a too-lenient punishment should not be permitted collaterally attack that judgment a later date on the basis illegal leniency." See Rhodes v. State,240 S.W.3d 882, 891-92 (Tex, Crim, App. 2007); see also Puente v. State, Tl S.V/.3d 340,342 (Tex. Crim. App.2002); Garciav.

Día|,596 S.W.zd 524, 527-28 (Tex. Crim. App. 1980); Tex. Code Crim. Proc.

Ann. art. 4.05 (Vemon 2005).

3, The Court Criminal Appeals has held there are instances where judgments are void may be attacked through writ. See Ex-parte Sledge, S.W.3d 104, (Tex. Crim, App.20l3).

4. The Court of Criminal Appeals in DeDonato overruled "the basic and long-held principle that lack ofjurisdiction will render a conviction void and not merely voidable." DeDonato v. State, 819 S.W.2d 164, 166-67 (Tex, Crim. le9l).

5. "[A] parly who accepts benefit judgment that imposes an illegally lenient sentençe estopped from challenging the judgment at a later time," Murray v, State,302 S.W,3 d874,876 (Tex. Crim, App, 2009).

ó. When appellant invokes benefit lesser offense by not objecting that lesser offense, he should be estopped from later complaint, Hall v. State,225 S.W.3 d 524,538 (Tex. Crim, App. 2007).

7. Applicant benefitted from plea offer he agreed to, as State dismissed all counts on Indecency With Child, and Applicant walked out of the courtroom conviction for misdemeanor Terroristic Threat one day in jail was covered back time, is now complaining the error he agreed to in order try invalidate the lesser charge and lesser punishment so he will have no conviction any charge, See Denato, 819 S.W.2d at 166-67; Murray v, State,302 S.W.3d 874,882 (Tex. Crim. App. 2009); Rhodes v, State, 240 S.Vy.3d 882, 891-92 (Tex. Crim. 2007); Hall,225 S,V/.3d at 537-540; McKinney,207 S.V/.3d at376; Prytash.,3 S.W.3d 531,

6. The Court should deny Applicant's requested relief.

Respectfully Submitted, PAUL JOHNSON Criminal District Attorney CATHERINE LUFT Assistant Criminal District Attorney Chief, Appe llate Division No,240 East McKinney Street, Suite 100

Denton, Texas 76209 (e40) 34e-2600 Denton, Texas 76209 (e40) 34e-2730 I ara.toml i n@dentoncounty.com *36 CATE OF COMPLIANCE The State certifies that the State's Memorandum and Proposed Findings of Fact and Conclusions of Law instant cause contained word count 993, said count being generated computer program Microsoft Word that was used prepare the document

CERTIFICATE OF SERVICE I hereby certif, that on the 29th day December 2014, a true and conect copy State's Memorandum and Proposed Findings Fact and Conclusions Law mailed, postage prepaid, Applicant's Attorney, Fred Marsh, l0l South Woodrow Lane, Denton, Texas 7 5

APPEND E lEx parte Derosie{, No. 02'15-00100-CR, 2015 Tex. LEXIS 11155, at *5 (Tex. App.-Fort Worth Oct. 29,2015, pet. filed)l

Ex parte Derosier Courl of Appeals of Tcx¿u, Second District, Forl Worth October 29,2Q15, Delivered¡ October 29,2015' Opinitln Filed NO. 02-15-00100-cR

Reporter

2015 Tex. App. LEXIS ll155 Appellant, Andre Derosicr, appeals lrom the hial

EX PARTE ANDRE DEROSIER

courf s order denying him relief on hìs applicatiolr Notice: PLEASE CONSUUI THE TEXAS for writ of habcas corpus. [n one point, Derosier arguen be¡ause the trial court lacked RULES OF APPELLATB PROCEDURE FOR subject-matterjurisdiction ovsr pìea he entercd CITANON OF UNPUBLISHED OPINIONS.

rcgar.ding tlre unclerlying offense that scrves as the Prior llistory: , ['Ë1] FROM THE 367TH basis for his rcquested relief, thc trial court abused its discrËtion by denying his application. tile will DTSTRICT COURT OF DENTON .COLINTÏ. r.cverse and remand for further proceedings

TRIAI" COURT NO. F-2002-O33GE. TRIAL consisfent with this opinion. cOI-]Rr JUDGE: HoN. MARGARET BARNES. tt \ \ II..B¡.cxcnotND r'

Counsel: FOR APPELLANT:'BRBD MARSH'

EDWARD NOLIER; MARSH & PAINE, P'C., Thc Statc indisted Derosier on March 7,2002,for.

DENTON, TBXAS. six cowrts of indeconcy with ,a child by cont¡ct' ' , l, On second day his jury tríal, $ovember 13' ; FOR STATE: PAUL JOHNSON' CRIMINAL 2W\ Derosier entere<l into plea agreement with DISTRICT AITORNEY; CATTIBRINE LI'JFT; ttre St¡rte wherein [*21 he pleadcd no contest to CHIEF, APPELLATE DIVISION¡ /LARA misdemcanor offense tôrror:istic threaP in TOMLIN, MA|THEW SHOVLIN, ANTIIOI'IY exchange Staûe dismissing the indecency PAUL, ASST. CRIMINAL DIS,TRICT charges. Pursuant plea bargain, Derosier ATTORNEYS, FOR DENTON COUNTT reccivcd one day jai.l one day's credit. Thus, Derosier dicl ¡rot serve any additional timc

DENTON¡ TEXAS. iil jail nor any type community superviision. Derosier claims, hoWevcr, hs súffer's the Judges: PANEL: LIVINGSTON, C,J.; MBIER collatsl¿l consequcnces from this rnisdemcanor SUDDERTH, JJ.

conviction being unable procure gaintul Opinion by: BILL.MEIER cmployment. SeeTatunv. State,846 S.W.2d 324, (Tcx. Crim. 1993) ("il1f misdemeunor judgmcnt void, its existence may have Opinion det¡imentnl collaleral consequences some future proceeding, it mây bc collaterally a[lackcd, MEMORANDTjM OPINIONI whether or ternt of probation wts successfully servecl out."). [. INtRonuc'r¡o,.*

| ó'e¡ Tcx, 1ì. App, l>, 41,4. 2 One tritl court's finclin¡1s rcad¡ thal thc plcu agrecment rcachcd Dcrosicr ttnd thc Stalc "apperrn lo lttvc originally bce.n for rhc offense oI'ussault.' ir¡td thlt offçnsc wa¡ì cmsscd out ¡nd'tcrroristic thtr:tl' rvus addctl." lll55, LEXIS

2015 Tex. *3 ^[2] of *39 Ptrge Accorcling to thc trial court's fìnclings ol'lacts in temoristic threat, ancl lltus his plcu-bargained-1'<rr l.his hatreas proceeding, prior to his plea, the (rial judgrnerrt is void ancl thc trial cour:|. shoulcl have court properly adrnonished Derosier concer:ning granted lris application, Thc Statc rloes not clisputc that the trial court lackcd subject-mattcr his rights antl thc conset¡rrenccs of' his plca, Derosier his attor.ttey signed the plea jurisdiol"ion over the nlisdemeanor charge tlrat agreement along clther paperwork, including Dcrosier pleadcd no confest to.3 Insteacl, the State lt3l a waiver of his right to a jury ¿rnd iltc asserts numerous cstoppel theories as to why the tourt's Adrnonitjorr of ,Statutor:y and trinl courJ ctid abuse its discretion by derrying Constitutional R.ights ancJ Def'onclant's Derosier' s application.

Acknowlcdgment." Derosicr clid not object thc A, Standard of Review and Jurisdicfion

trial courtrs jruisdiction prior entering his plea. We revisw trial courl's denial of tlts relief Tþelvc years aftcr ent,ering his plca, Derosier rcquestcd an apptication f'.br writ of habeas ñled in the trial court this original application for writ of habeas corpus, al.leging that the trial court corpus [t5] under an abuse of discrstion standard.

lacked subject-matter jurisdiction ovcr the See Kniatt u, Stale,206 S.\ry,3d 657, 664 (Tex. misdemcanor oflense of terroristic threal The Crim. AppJ, cert, dcnied,549 U.S.. 1052,ln S, CL 667, t66 L. Frl. 2d 514 (2006)i,Ex parte trinì court:denied rolief. Mello, 355 S.\t/.3d 827, 832,(Iex. App:-Fof:

In tho Fial cou¡t's conclusions of law'rclating to tilorth 2011, pet. refd); Ex porte Karlson,282 i[s denial, the uiaì court concluded that cven S;V/.3ô ,118, ln (tex. App.-Fort Woith 20(Þ, though the plea-bargained judgment was "void," pets. reFd): This meÐns that we view thc rccord in Dcroíisr nót entitlcd to collaterally attack the the light most f,avorable the tial court's r,uling judgmont iSicause'he had "gnjoyed fho benefits of afford grcat def,cr-ence to its findings and ágrec.d judgment prescrìbing too-leirisnt conclusions, espècially when they involve punishment.'In gúþporr of its dccision, the trial cletonninations credibility and demeanor. M.ello, courf. cited fo numcrous Texas Court Criminal 355 Sj\ry.3d at 832.'A ùial court, however,'has no Appeals decisionn that trial court interpretcd discrotio¡i determining. what 'the law is <¡r as standing for the proposition that '/therc n¡e applying tlre law tô the facts, /n rc HÍnterlong, instancos where judgments that arc voicl mEy not 109 S.W.3d 61.1, 621 (Tox. App.-Fort Worth be attacked through a ¡,rit." Uttimatel.y, the lrial 2003, orig. proceeding [mand, denicd]) (op. on court cpncluded,that Derosier wa^s "cstopped fror¡r reh'g). ggmplaining about ¡rlea agreement that he tt axioi'natic subject+nattcr jurisdicfion agr.eed tcl, anrl received ¡*4¡ bencfit the cannot be confer,rerl by ngreemei:t paflies; bargain from." This appeal fbllowed. jurisdietion must be vested in a court by constitution or ståtute. See Stale v. Robet'ts, 94Q

II[. Dscusslon S.W.2cl 655, 657 (Tex. Crim. App. 1996) In one point, Derosier argues lte trial court ("[S]ubject matter jurisdiction cannot be conferred by ngreement pârties; jurisdiction must bc abused its discretion by denying his application vested Ín a court by constitution clr sfatute."), writ of habeas corpus because trial court laokccl subjc<;t-rnaltcr juriscliction ovcÍ the overruled on other groundt State v. Medrnno, misdemcanor charge he pleaclcd no contest to, S.W.3d 892,894 (Tcx. Crim. App.2002).

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

Pagc ^[3] of ^[2015] Tcx. App. LEXIS I1155, +5 ll9 S.W.3d at 806 (second emphasis addecl)'

B, Rhodes, Murrtq, aud lllegal Sentences

Moreover, tlte Rlndes court specificnlly statecl In support olliLs ar:gunenI th¿ì|. Dcrosicr shoulcl be that the only excepl"ions to the cstoppcl or'¿invited estoppecl f.rom cotrlplaining abottt his orrer" doctrinc thal. applicd to Rhodes's judgment plea-bargained judgrncnl, tùc Stalc, like the trial were "cha,l lenges to the s ubject-matter iurisdiction court did in it:s conclusions of law, rclics in part olr the courf rcndering the judgment." Rlwdes,240 S.V/.3d at 891, In surnmary, Rhodes did nol the court otcrimina,l appeals's decisions tn Rhodes v. State,240 S.1vV.3cl 882 (Tex. Cri¡n. App. 2007) i nv oì ve the (rial cour[' s subject-matter j urisdiction, rntl Mu,rray v. Slatc,302 S,V/'3d 874 (Tex. Cri¡n. and there is notlring in Rhodes fo suggest that App.2009). esloppcl-like doctdnc.s apply when a coutt dotx no[ have subject-rnatter jurisdiction oYcr ¿r ln Rhod.es, the court faced the qucstion whether bargained -for j ud gmen L a defendant who cntered a plea agreement involving [t6] urultiple charges and corresponding Mu:rray also involved tllegatly lcnisnt sentence," but unlike the defendant it Rhodcs, sentences could later argue that his plea was void.

because undcr the code crimin¿l procedurc, the Munay not barrËd from challenging the ttial court was not authorìzsd to ilssqss his illegal sentence because hc had procedurally senûences to ri¡n concurrenily. 240 S.W.3d at 890- perfecûed his challenge to the judgmeht wheit he In shorg Rhode's "tpccived a judgment that was "assignetl a reason" withdrawing his pleÍl prioi illegally lcnisttt by having his sentenco run to the entry judgment. Murray,302,'S.W3d at concurrently instead of, consecutively." /d The 883. In coming to its conclusion that'the Süato's Rhodes court held that Rhodes \ilas qstopped from cstoppel èlaims fai ted:,' tho Murrøy court'assumed, attackin$ this judgmont through a writ of haboa^s 'wi.thout deciding, that the State [was] not bar¡ed 'colpl¡s' bccause "he agreed to ths concurrtnt by a subjcct[-]matÉer jurisdiction dclbct." Id. al: lsentÞncing provisi.on, then through his own 882. Like in itftod¿,r', there is nothing [+El in oonduct [of not directly appealing the decision] he Murrøy to suggest that cstoppel'like doct¡ines åpply whcn a court lecks 'subject-matter helped procure and.benetit,from thc i¡.lle9ality-" Id. But Rhodes is inaþplicabte 'to facts this j'uri sd i cti on over thc bnrgainul-foi jud gmon t' c88e. Accordingl.y, lrial court and tlte State's reliance lì.n Rþdes, there was no question that lrial upon Rhodes rnd Murray is misplaced' This case court possessed subject-mattor jttrisdiction over does involve an illegal sentencc; it involves a jurlgrnent ís void because Fial court tho juclgmenl" resulting lionr Rh<¡des's plea. The trial court's failure was thnt il had entered an lacked jurisdiction enter judgment. 'See Nix v. "illegally lenient scntcnce." /d. at 890. An illegal state,ós s.Tv,3d 664,'667 (Tex, Crim. App.2001) sentencc is a sentcnce is "ouüside the ("Th" void judgmont exception' recognizes that there are som'e rare situations which triaì maximum or mi¡r.inrunr rilìge uf pun:ishmônt - - -, unauthorizecl 'law[,] ancl the.rcfore ilìegal." court's judgmcnt accortled no respcct due a Mìzetl'v. state, s.w.3d 804, 806 (Tcx' Crim. complctc lack of power render judgment in question."); see also ln re L-¿ona.rd, 402 S.W.3d 2003). Illegal se¡rtences are curable defects 421, 423 (Tcx. App.-Fott tJ/orth 20'13, orig. anrJ do not involve court's jurisdiction- Rhndes, S.W.3d S88, Indeccl, t¡s the sourt of' procceding Imand. conditionally granted]) ("Estoppel, however, cannot appìy if trial crimin¿rl appeals ha.s statccl, [+71 "There lras never court. hâd no subject[-.lmat,tel jucisdiction.). bcen anything Tcxas law thal. prevcnted azy court jurisdictíon over critninnl case flronr C. E¡ pørle Sledge

ncrticirrg and con'ectirrg illcgal serttcncc-" Miz'ell,

Pr,rgc 4 of ^{[6] [2015]} Tcx. App. LEXIS I I l-55, +8 vindication in original post-conviotion

In its conclusions of law, the aiul oourt ¿ilso appfication for writ cll'habeas corplls. We do concludcd that the "Court oI Crirninal Appeals has held that there are instanccs whers juclgnrents that, not mean herc t() say otherwise.

arc v<licl rn¿¡y not be tttacked through writ." Er /r/. (f'ootnotes omitted). Thus, the trial ceurt's pørte Sledge,3gl S.W3ct 104, 1.07-08 (Iex. Crim. rcìiancc, ancl the Slale's reliance now, on Sledgeis App. 2013). The State rclies on similar premise rnisplaoed because it is not tlisputed in this case in ils bricfing to this court. But SIedge is also no1 that Dcrosier brought his subject-matter applicable to the facts of this case. In ^Sledge, tlre court of crirninal appeals hcld that writ jurisclictional claim in his origina.l post-convicf.ion applical-ion l'ot writ of habcas cor?us. applicanl's clairn that the trial coutt's [*9] order revoking his deferred adjudication comrnunity D. Ex parte Heilann

supcrvision was void for lack of subject-malter

jurisdiction .wa.s not cognizable on successive One of cases heavily rtlied upon by tho Statc

habea¡ cor¡us review. Id. Tbe Sledg¿ court is Exparte Heilman.4-56 S'W.3d 159 (tex. Crim. roasoned,that because tle claim did not:fit within App. 2015). In Heilnun, fhe court criminql any fhe statuþry ex.ceptions to prohibition appeals held thut it would no longer recognize a agains[ suocgssivE writs and because applicant distinction between limitations defenses that a¡e had,not brought his..iurisdictional claim in his "based in factlt vorsus those that a-nc "purc law.' original pnst-conviction application for wríf of Id^ at l,6l-62, Prior to Heilman, Texas haÞeas cglpus, thc coqrf of criminal appçals itself jurisprudence trcated limitation defenses based on statutorily barred ffom rcviewf¡¡g the claim. facfs as Martn catogory-three rights limilation td- , defenses based on pure law as M¿rin catcgory'one The.Slødge. court, howeve¡ discussed at ,length d,ghts. See ldlsee aLso Marinv. Støte,8-51 S.try.2d turisdictionaì olaims are cognizablc in 275;ZllE ([cx, Crim. 7993\, overtuled on 'h¿beas other grounds Cain t Stnten Ð47 S,W.%1262, corpus procealing s," ld. postjconvicfion al I08, Specifically to claims regardi¡g & (Iex. Crim. App. t997). Th" apprcciable convicting court's jurisdiction, the Sledge court differsnce is th¿t Marin catcgory-three rights are [*11] zubject fo forfeiture, Marin stated, category-one righüs are "absolute rcquirencnts." It is, course, axiomatic our case law that Marin, S.V[.2d 279. One suctt Marín review of jurisdictional claims are cognizablc category-one right is subject-matter juri'ßdiction. post-con vìcti on habeas corpus proceedin gs. /d. Until Heilman,limitation defenses based on Moreover, we have rccognizrd them to be pure law were treatecl as juri.stlicfiori¿rl issues. cognizablc without regard to ordinary notions S.W.3d a¡. 162. procedural detault+ssentially bepause ,it Thc State asks court :interprct Heilman ¿us

is simply optional parlje.s âgree standing propos;ition l.hat "protecting confer subjcct[-]mafter jurìsdiotion a convicting courC whe.re lhat juri.sdicl"ion is goocl-t'aith, ârm's length plea agreements" trumps subject-mattcr.jurisdiction. But Heìlnnn docs not lacking. Therefore, [#1.0] unlcss and until stlch suggest any(hing ol'thc sot'l,, Heilmør¡ stands lbr tinre as l,egislature might say otherwise, in exercise its colrstitu[ional autfrority to tlre proposition there no e..r po.ri, focto viol¡rtion hy trcal.ing all limilation dcf'enscs us regulatc posl-conviction wril. procedure, a rncritoriclus cl¡lim o[ lruly julisclictional "Mnrin category-three f'orl'citable rights." Id. at climension will "always" be subjcct to I 69. I LEXIS App.

2015 Tcx, I { l-55, I I ^[5] of ^[6] *42 Pagc thal l"his oourt [*13] "is bountl by the prcccclent of Heilmcmrictually works rìÉt¡Iinsf thc Stale's position the Texas Cou¡:t of Cri¡ninal Appeals ancl has no in this case. H.eilntcn explicitly stotes that "estoppel author:ity to disregarcl or overrule" il), affd,2l8 cloes not apply when [n] courl lack[s] jurisdiclion'" S.V/.3d 85 (Tex. Crim, ApP. 2007). Id. at 16?. Further, Heilnrun cxplains that a "limitations clefcnse stancling alone is merely a R The State's Renraining Arguments

proccduraì 'act of gracc' hy the lcgislaturc that can be lbrfeitecl," hut when a "Lria,|l court lack[s] In the remainder of its briefìng, the State argues jurisdiction . . . no conviction [is] possible-" Id. al that DerosieÍ not harmecl by his plea, or that 168. We conclude th'¿t Heilman rlnes not support hc otherwíse waived his complaint about the trial the trial court's deniat of Derosier's application, court's judgment, and thus this courl should nor <loes it support the Sfate's posiúon that atTinn the trial court's denial of his application. But subject-matter jurisdiction is not a question of

Derosier is estopped from brjnging his application. harm; rather, it is a quastion regarding a trial F12I

court's nbiliry [o act. Roherts,940 S'V/,2d at 657. E, Precedent It is not a questÍon o[ thc parlics' conduct thaf can confcr upon a court an authority that does not The S¡aæ also rclies on a myriad of cases, concrlrrencos and f¡o¡n court clf criminal appoals's opinions including dlsssnts frorn fragments wbcn lhe.future, addrcss the issue welt how Texas Cou¡t of Crirninal Appeals will, in. as opinions fmm c¡lhcr state of an applicant as asks and coufs, this jurÍsdiction in writ Hall court to read habeas corpus. See rcgardíng leaves tea v. latcr beneñts trom an agreed-to judgmenf. challenge,r subject-matter the convicting court's but no to contcst battcry cstoppcd plcaderl felony (discussing also acquiescence"); see who defendant (holding QOO4) 3d 896 of 'teneficial 2W7) (Keller, PJ., dìssentìng) rloctrine the Ctl. App, 4th Cal. Rptr. 970, 982-83' l8 People v. Vera, 122 strike from to state,225 S.lV.3d 524,537-38 (Tex. Crim. App. authority challengÍng trial court's conccrns a instcacl, exist; power court's subject-matær jurisdicti.on lock of of lack cornplete to J¿¿ judgmentis a'nullity' and render court S.Vf.3d of attackcd at any tinro."). can be void ("4 at668 ttre As judgment in question. Sledge, "a meritorious parle i appeals statcd dimcnsion habeas cniminaì W.2 S. s, 947 Dav claim 6, 223'24 (lìex. Crim. d ^[21] of tdy jurisdictional post-conviction application for writ will claim that is This 1996)). type very 391 Ex at 108 (citing S,W.3d that agree tlre both Sledge, corpus." oríginal' to vindication be 'always' subject jurisdiction lacked courl lrial has trial Derosisr and brouglrt, St¿tc and teroristic threat. court on of cnter judgment ^[114] predicÂted to charge ^/¿r, five-year: cnhanccments wherc courf struck the IV. Cc¡ncr.uston enl¡anccments pursuant to pleâ agrcement). In V/e hol.d that the trial cÒurt. abused its cliscrction

short, Lhe State ¿rsks this court to prcernplively denying Derc¡sier's application writ c¡f overrulc the Tcxas Cor¡rt Crintinal Appeals's hal¡eru corpus because thc trial court di<l not have longstanding holding "it is simply optional subject-matter jurisdiction over the agreed'to the parties agree to confer subject-nratter charge ancl thcrelbre thc judgment is void- juris<liction ¿¡ convic[ing oourt wherc that Accorctingly, we sustain Dcrosier's sole Po¡nt, we juris<liction lackÍng. Slwlge,39l S.VV.3d 108. reverse thc trial court's -iudgment denying 'Wc decline the State's invitation usurp role Derclsicr's rlpplication, and wc remanct case lhe Texas Court ol Criltrinal Appeals. See Sierru v. Slule, S.W..3d 52, (Tex. back that court lbr procceclings consistent with [his opirtiort. App.-Ftrrl Wc¡¡th 2004) (o¡t. on reh'g) (stating

Pnge 2015 Tex. App, I,EXIS I I l5-5, 'È14 DO NOT PUBLISH

/s/ Bill Meier

BILL MEIER Tex. R. P. 47.2(h)

JUSTICE MEIER ancl DELIVERED: Octobsr 29,2015

PANEL: LMNCSTON, C.JI; ST]DDERTH, JJ.