Summary
In Lozoya, the applicant was also placed on community supervision for ten years for a third degree felony under the Texas Health and Safety Code, even though the maximum period authorized by statute was five years.
Summary of this case from Ex parte GrinsteadOpinion
NO. WR-92,475-01
03-29-2023
EX PARTE Mathew David LOZOYA, Applicant
David W. Vernon, for State. Lindsey Adams, for Applicant.
David W. Vernon, for State.
Lindsey Adams, for Applicant.
OPINION
Hervey, J., delivered the opinion of the Court in which Richardson, Newell, Walker, and McClure, JJ., joined. Applicant pled guilty to two counts of third-degree felony obtaining a controlled substance by fraud. TEX. HEALTH & SAFETY CODE §§ 481.129(a)(5)(B), (d)(2). Pursuant to a plea bargain, Applicant pled guilty to two counts, and the State abandoned the other two. The State agreed to recommend a four-year sentence of confinement in one count and to place Applicant on community supervision for 10 years in the other. The trial court followed the agreement and ordered Applicant's sentences to run concurrently. However, the maximum initial period of supervision for this offense, without a lawful extension, which is absent here, is five years. TEX. CODE CRIM. PROC. art. 42.12 § 3(b)(2)(B) (2017) (maximum initial period for a felony is 10 years except that it is five years for other certain third-degree felonies, including obtaining a controlled substance by fraud). In year six, the prosecutor filed a motion to revoke. The trial court revoked Applicant's community supervision and sentenced him to five years’ incarceration. We filed and set this case to determine (1) whether Applicant should be estopped from challenging the trial court's revocation of his community supervision because he accepted benefits under his plea agreement, (2) whether the trial court had jurisdiction to revoke Applicant's supervision after the five-year period expired if estoppel does not apply, and (3) the proper remedy if Applicant is entitled to relief. We conclude that Applicant is not estopped from challenging the trial court's order revoking his community supervision, that the trial court had no jurisdiction to revoke Applicant's community supervision, and that the proper remedy is to vacate the trial court's order revoking Applicant's community supervision.
When we refer to the State, we mean the local district attorney's office. In contrast, we also refer to the State Prosecuting Attorney (SPA), which filed an amicus curiae brief in this case. The SPA's Office is a state-wide agency that represents the people of Texas in all proceedings before this Court. Tex. Gov't Code § 42.001 ; compare id. § 42.005(b) ("A district or county attorney may assist the state prosecuting attorney in representing the state before the court of criminal appeals."), with 42.005(a) ("The state prosecuting attorney may assist a district or a county attorney in representing the state before a court of appeals if requested to do so by the district or county attorney.").
PROCEDURAL HISTORY
We do not recite the facts supporting the charges because this case deals with legal issues that do not turn on those facts.
About six months after the five-year period of supervision expired, a motion to revoke was filed. The capias issued seven days later, and the trial court subsequently revoked Applicant's community supervision. Applicant agreed to plead true to the allegations in return for the State recommending a five-year sentence of imprisonment.
The district attorney's office alleged that Applicant,
• Failed to totally abstain from the illegal use of controlled substances because he admitted to consuming methamphetamine on or about March 28, 2019,
• Failed to report to his supervision officer on April 22, 2019,
• Failed to pay his $60 supervision fee for the months of April through December 2016; January through December 2017; January through December 2018; and January through April 2019,
• Failed to pay his $361 court cost as scheduled,
• Failed to timely pay his $1,000 fine, his $10 crimestopper fee, his $80 bond fees, and $80 UA fees, and
• Failed to participate in his mandatory drug or alcohol continuum of care treatment plan after completing the SAFEP Relapse Program successfully complete Phase I of his continuum of care due to him leaving the Salvation Army and not returning.
The State later notified Applicant that it believed that the trial court did not have jurisdiction to revoke his community supervision when it did because no motion to revoke had been filed nor did a capias issue before expiration of the five-year period. Applicant filed the instant writ application making the jurisdiction argument. After receiving the application, we remanded it for further record development. The trial court entered findings of fact and conclusions of law, and it recommended that we grant relief.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The trial court entered findings of fact and conclusions of law that mostly dealt with Applicant's claims of ineffective assistance of counsel regarding his counsels’ lack of knowledge about applicable community-supervision law. Relevant to this case, the habeas court concluded that an order placing a defendant on community supervision was void to the extent it purports to subject a defendant to an unlawful period of supervision. It further concluded that, because Applicant's community supervision ended after the lawful five-year period expired without a motion to revoke having been filed within that time, the court did not have the jurisdiction to revoke Applicant's community supervision, and the judgment purporting to do so was void for lack of jurisdiction. The habeas court relied on Prior v. State , 795 S.W. d 179, 183 (Tex. Crim. App. 1990), Pedraza v. State , 562 S.W.2d 259, 260 (Tex. Crim. App. [Panel Op.] 1978), and Coffey v. State , 500 S.W.2d 515, 515 (Tex. Crim. App. 1973).
Applicant had different counsel for his motion to revoke. That counsel also did not know about the five-year limitation.
STANDARD OF REVIEW
A habeas court's findings of fact and conclusions of law are reviewed under a bifurcated standard. See Ex parte Navarijo , 433 S.W.3d 558, 567 (Tex. Crim. App. 2014). We defer to a habeas court's findings of fact that are supported by the record, especially when the findings are based on credibility and demeanor. Rios v. State , No. PD-0441-21, 665 S.W.3d 467, 477-82 (Tex. Crim. App. Dec. 7, 2022). We also defer to a habeas court's rulings on mixed questions of law and fact when resolution of the legal issue turns on the credibility of evidence or demeanor of witnesses. Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo legal questions and mixed questions of law and fact that do not turn on credibility or demeanor. Id. The habeas court is the original factfinder, but this Court is the ultimate factfinder and can exercise that authority "to make contrary or alternative findings and conclusions." Ex parte Reed , 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).
ESTOPPEL
This Court has recognized two theories of estoppel: estoppel by contract and estoppel by judgment. Rhodes v. State , 240 S.W.3d 882, 891 (Tex. Crim. App. 2007). We have said that estoppel by contract means that "a party who accepts benefits under a contract is estopped from questioning the contract's existence, validity, or effect" and that estoppel by judgment means that "[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." Id. (quoting 31 C.J.S. Estoppel and Waiver § 124 (contract by estoppel), 130 (estoppel by judgment) (1996)).
a. Clarifying Estoppel by Contract
We begin by addressing estoppel by contract. We have not been as precise as we could have been in the past when discussing this doctrine. We now take the opportunity to clarify its application in criminal law. Estoppel by contract prevents a party from "deny[ing] the truth of facts agreed on and settled by force of entering into a contract ..." 31 C.J.S. Waiver and Estoppel § 55 (2019). It means "that a party is bound by the terms of his own contract until set aside or annulled for fraud, accident, or mistake." United Fid. Life Ins. Co. v. Fowler , 38 S.W.2d 128, 131 (Tex. Civ. App.—Dallas 1931, writ dism'd w.o.j.). For estoppel by contract to apply, no acceptance of benefits is necessary. The doctrine turns on whether a party took a position inconsistent with essential facts recited in the contract to the prejudice of another. 31 C.J.S. Estoppel and Waiver § 70 (2019). Estoppel by contract does not apply here because Applicant is not challenging the terms of the plea agreement. For example, Applicant does not argue that the State orally agreed to recommend a five-year probated sentence even though the plea paperwork shows that the State would recommend a 10-year probated sentence.
When we have referred to estoppel by contract in Rhodes and subsequent cases, we meant estoppel by acceptance of benefits under a contract, which is a closely related but distinct type of estoppel. Rhodes , 240 S.W.3d at 891 (referencing a version of estoppel that turns on the acceptance of benefits but mislabeling the doctrine as estoppel by contract which does not turn on the acceptance of benefits). Our conclusion is supported not only by the definition we adopted, but also by our citations in Rhodes . In Rhodes , we cited Section 124 of Volume 31 of the Corpus Juris Secundum. Id. (citing 31 C.J.S. Estoppel and Waiver § 124 (2009) ). But that section deals with acceptance-of-benefits estoppel, and the doctrine's application to contracts is addressed in the following section, Section 125. 31 C.J.S. Estoppel and Waiver § 125 (2009). On the other hand, estoppel by contract is discussed in Section 55, which we never cited. Id. § 55. Going forward, we will not refer to estoppel by contract when determining whether an applicant should be estopped from bringing a claim because he accepted a benefit from a plea bargain.
Estoppel by contract could become an issue in another plea-bargain case if a defendant takes a position inconsistent with the terms of the plea bargain to the prejudice of the State.
b. Discussion
i. Can a Court Sua Sponte Raise Estoppel on Behalf of the State?
According to Texas civil law, which we have approvingly cited in this area, a defendant must plead and prove estoppel because it is an affirmative defense. TEX. R. CIV. P. 94 ("In pleading to a preceding pleading, a party shall set forth affirmatively ... estoppel ... and any other matter constituting an avoidance or affirmative defense."). While that rule does not neatly translate to criminal law, we have never had the occasion to decide whether the State has a duty, as the aggrieved party, to raise estoppel or whether courts will sua sponte raise the issue for the State. See Ex parte Smith , 444 S.W.3d 661, 667 (Tex. Crim. App. 2014) (courts can sua sponte consider whether laches should bar relief).
Estoppel was not mentioned in this litigation until this Court ordered the State to address the topic when we filed and set the writ application for submission, and now, the State argues that estoppel does not apply. Even the SPA argues that, "[b]ecause estoppel is an equitable doctrine, the Court is not required to apply it when the directly aggrieved party (the local District Attorney) is not demanding it" and that "[t]he local interest may be at its apex here when relief would be a remand of the cause to the trial court for further proceedings." SPA's Amicus Curiae Brief at 4 (citing Neal v. State , 150 S.W.3d 169, 173 (Tex. Crim. App. 2004) ("Both Texas and federal courts recognize that prosecutors have broad discretion in deciding which cases to prosecute.")). We need not, however, resolve this unbriefed, open question about whether courts can sua sponte raise estoppel because we conclude that estoppel does not apply.
We recently said that the State can raise estoppel on direct appeal for the first time as the prevailing party at trial, but we also suggested that the non-prevailing party forfeits the argument if not preserved. See Martell v. State, 663 S.W.3d 667 (Tex. Crim. App. May 11, 2022).
ii. Limitations on Application of the "Estoppel by Acceptance of Benefits" Doctrine
Under the acceptance-of-benefits doctrine, "[t]he acceptance of any benefit from a transaction or contract, with knowledge or notice of the facts and rights, will create an estoppel." 31 C.J.S. Waiver & Estoppel § 154 (2019) (estoppel by acceptance of benefits, generally). But the doctrine is not without its limits. "[I]t is essential that the person against whom the estoppel is claimed must have acted with knowledge of the facts and of his or her rights ...." Id. § 155 (elements, extent, and limits of rule governing estoppel by acceptance of benefits); see Frazier v. Wynn , 472 S.W.2d 750, 753 (Tex. 1971) (" ‘[T]here can be no ratification or estoppel from acceptance of the benefits by a person who did not have knowledge of all material facts’ at the time of acceptance."); 28 AM. JUR. 2D Estoppel and Waiver § 61 (2021) ("Before one's acceptance of a benefit can amount to an ‘estoppel,’ it must be shown that the benefit was accepted with knowledge of all the material facts."). There is no voluntary acceptance of a benefit if the person "lacks knowledge of some material fact at the time of acceptance ...," and if a person involuntarily accepts a benefit, acceptance of the benefit will not create an estoppel if the person takes steps to "tender back the benefits ...." Estate of Johnson , 631 S.W.3d 56, 65 n.43 (Tex. 2021) (quoting Turcotte v. Trevino , 499 S.W.2d 705 (Tex. Civ. App.—Corpus Christi 1973, writ ref'd n.r.e.) ).
iii. No Estoppel is Created Here
The record shows the following: (1) trial counsel, the State, and the judge all erroneously believed that Applicant could have been placed on community supervision for 10 years, (2) Appellant's motion-to-revoke counsel had the same mistaken belief, (3) the State notified Applicant on October 9, 2020, after it discovered the issue, (4) the court appointed an attorney for Applicant on January 28, 2021, and (5) Applicant filed this application on March 18, 2021, less than two months later. Even if, as the SPA argues, placing a defendant on community supervision is a per se benefit, there is no evidence that anyone knew the material facts that the maximum lawful initial period of supervision was only five years or that Applicant was bargaining away his right not to be placed on community supervision for longer than legally allowed. This also is not a case in which Applicant slept on his rights.
The State issued a notice pursuant to the Michael Morton Act. Tex. Code Crim. Proc. art. 39.14. It did not say in its notice when it discovered the issue.
We need not decide the exact contours of the acceptance-by-benefits doctrine today. It is sufficient for us to conclude that, based on this unusual case in which no one knew about the material facts that the maximum lawful initial period of supervision was only five years or that Applicant was bargaining for an unlawful period of supervision, Applicant's acceptance of the 10-year period of community supervision, assuming it was a benefit, was not voluntary. We further conclude that Applicant did not acquiesce to the statutorily unlawful period of supervision or ratify it because, once he learned the material facts, he diligently pursued his claim. It would be inequitable on this record to hold that an acceptance-of-benefits estoppel was created under the plea agreement or the judgment.
TRIAL COURT'S JURISDICTION TO REVOKE
The issue in this case is a narrow one: Applicant argues that the trial court lacked jurisdiction to revoke his community supervision after the five-year period expired. This case is not about whether the trial court had jurisdiction to place Applicant on community supervision for more time than was lawfully allowed, it is about whether the trial court had jurisdiction to revoke Applicant. It is also not about whether the trial court had the authority to place Applicant on community supervision for more time than was lawfully allowed, or whether Applicant's sentence was illegal. Applicant also does not challenge the length of the supervisory period.
The applicant in Ex parte Williams , 65 S.W.3d 656 (Tex. Crim. App. 2001) was placed on community supervision for 10 years even though he was not probation eligible because of an affirmative deadly weapon finding. Id. at 657. He argued on writ that he was entitled to relief because his sentence was illegal. Id. Williams is distinguishable from the instant case because Applicant does not argue that his sentence is illegal, and Applicant is challenging the order revoking his community supervision, not the order placing him on community supervision.
The SPA argues in its amicus brief that the trial court retained jurisdiction because the original judgment placing Applicant on community supervision was still "valid at the time Applicant's community supervision was revoked ...." It goes on to argue that the fact that "the excessive term of community supervision was later discovered to be unauthorized does not change that." Because our precedent is relevant to the disposition of this issue, we review it now.
In Coffey , the appellant was convicted of robbery and sentenced to life imprisonment based on an enhancement. Coffey , 500 S.W.2d at 515. He appealed, arguing that the enhancement conviction was void. Id. at 515-16. The appellant had been placed on community supervision for a two-year period, and after the period ended, the State filed a motion to revoke, which the trial court granted. Id. at 516. We held that a trial court has jurisdiction to revoke community supervision after the supervision period ends only if a motion to revoke was filed and a capias issued before expiration of the period. Id. Applying that law to the facts, we concluded that the trial court in the enhancement case did not have jurisdiction to revoke the appellant's community supervision because no motion to revoke had been filed before the supervisory period lapsed. Id. at 517 ; see Stover v. State , 365 S.W.2d 808, 809 (Tex. Crim. App. 1963) ("Only the [trial] court's action authorizing the arrest of the probationer, followed by diligent effort to apprehend and hear and determine the claimed violation, can authorize revocation after the probation term has ended.").
In Pedraza , the appellant was convicted of misdemeanor assault and placed on community supervision for two years. Predraza , 562 S.W.2d at 259. In year one, his community supervision was revoked. Id. He appealed and argued that the trial court's order placing him on community supervision was void ab initio because the maximum period of supervision for that offense was only one year. Id. at 260. We held that the order placing the appellant on community supervision was void only "to the extent it purported to subject [the] appellant to probationary supervision beyond the time authorized by law" and denied relief because the State filed its motion to revoke and the offense (DWI) was committed before the expiration of the maximum one-year period of supervision. Id. In discussing the issue, we said that a period of supervision runs continuously until it expires and that, "[h]ad the maximum period of [community supervision] to which [the] appellant could lawfully be subjected (one year) expired prior to the violation and revocation of his [community supervision], a different situation would be presented." Id.
In Prior , the appellant pled guilty to third-degree felony delivery of more than one-quarter ounce of marijuana. Prior , 795 S.W.2d at 179. The trial court deferred a finding of guilt and placed the appellant on deferred-adjudication community supervision for five years. Id. The appellant absconded and was later arrested in New Hampshire. Id. at 180. After the five-year period expired, the trial court adjudicated the appellant guilty and sentenced him to five years’ confinement. Id. at 179-80. The appellant appealed and argued that the trial court did not have jurisdiction to adjudicate him guilty because the period of deferred-adjudication supervision had expired, and the State did not use due diligence in apprehending him. Id. at 180. We held that a trial court has jurisdiction to revoke a defendant's deferred-adjudication community supervision after the term expires so long as the motion to revoke is filed and the capias issued before the expiration of the supervisory period, and the State used "due diligence to apprehend the probationer and to hear and determine the allegations in the motion." We denied relief because the motion to revoke was filed and the capias issued before the period of supervision ended. We did not address the appellant's due diligence claim because he failed to preserve it.
In Donaldson , the applicant pled guilty to indecency with a child and was placed on community supervision for six years. Ex parte Donaldson , 86 S.W.3d 231, 232 (Tex. Crim. App. 2002) (per curiam). During that period of supervision, the State filed its first motion to revoke, which the trial court later dismissed upon request of the State. Id. Two days after the supervision period expired, the trial court issued an order purporting to reinstate the State's motion to revoke and later revoked the applicant's community supervision and sentenced him to six years’ confinement. Id. The applicant filed a postconviction writ application and argued that the trial court had no jurisdiction to enter orders reinstating the State's motion to revoke and revoking his community supervision because the period of supervision elapsed. Id. We agreed and granted relief. Id. at 233. We reasoned that any action to revoke a defendant's community supervision that is taken after the expiration of the applicant's period of supervision is without jurisdiction unless a motion to revoke was already pending, and because no motion to revoke was pending when the applicant's supervisory period ended, the trial court's orders purporting to reinstate the State's second motion to revoke and revoking the applicant's community supervision were void. Id.
This case presents the "different scenario" we envisioned in Pedraza : Does a trial court have jurisdiction to revoke a defendant's community supervision during an unlawful period of supervision when the motion to revoke was filed and capias issued after the lawful period of supervision expired? We think that the weight of our precedent shows that the answer to that question is no.
As previously noted, Applicant's community supervision could have been extended from five to 10 years, and had it been, the trial court would have retained jurisdiction to revoke Applicant's community supervision.
The SPA argues that, so long as the trial court had jurisdiction to place a defendant on community supervision, it has jurisdiction to revoke the defendant's community supervision—even after the lawful period of supervision ends—until the order is set aside or the trial court grants relief under Article 11.072. We are not persuaded. A trial court must have jurisdiction for each action it takes. Ex parte Armstrong , 110 Tex.Crim. 362, 8 S.W.2d 674, 676 (1928) ("Unless the power or authority of a court to perform a contemplated act can be found in the Constitution or laws enacted thereunder, it is without jurisdiction and its acts without validity."). Thus, even though the trial court had jurisdiction to place Applicant on community supervision, whether the trial court had jurisdiction to revoke his community supervision is a different question.
Having settled that, resolution of the jurisdictional issue is clear. Applicant was placed on community supervision for 10 years even though the maximum period was five years. Applicant's period of supervision expired after the five years elapsed because it was never lawfully extended, and at the time the period of supervision ended, there was no motion to revoke pending nor had a capias issued. Therefore, the trial court acted without jurisdiction when it purported to enter an order revoking Applicant's community supervision and sentencing him to five years’ confinement.
REMEDY
The last question is the proper remedy. The State requests that we not unwind the entire plea agreement because it wants to waive its right to enforce that aspect of the plea bargain. See Ex parte Cox , 482 S.W.3d 112, 118 (Tex. Crim. App. 2016) (citing Ex parte McJunkins , 954 S.W.2d 39, 41 (Tex. Crim. App. 1997) ("[I]n some circumstances, the [S]tate may waive an invalid portion of the judgment and retain the remainder of the plea agreement.")). It asks that this Court only set aside the trial court's judgment revoking Applicant's community supervision and sentencing him to five years’ confinement. Id. We will do so.
CONCLUSION
Having concluded that Applicant is not estopped from challenging the jurisdiction of the trial court to revoke his community supervision, that the trial court did not have jurisdiction to revoke Applicant's community supervision under the circumstances of this case, and that Applicant's period of supervision ended after the five-year term, we grant relief. The judgment in cause number F46837 in the 18th District Court in Johnson County revoking Applicant's community supervision and sentencing him to five years’ confinement is vacated.
Keller, P.J., Keel, and Slaughter, JJ., concurred.
Yeary, J., filed a dissenting opinion.
Yeary, J., filed a dissenting opinion.
The Court grants post-conviction habeas corpus relief in this case, holding that Applicant is not estopped from seeking that relief and that the convicting court lacked jurisdiction to revoke his community supervision. I would deny relief on the more basic proposition that Applicant's claim is simply not cognizable in post-conviction habeas corpus proceedings to begin with. Therefore, I respectfully dissent.
I. BACKGROUND
Applicant pled guilty, on October 7, 2013, to two counts of obtaining a controlled substance by fraud. In exchange, he received a sentence of four years’ imprisonment for Count 1, and a concurrent ten-year term of community supervision for Count 2. Approximately six years later, on November 15, 2019, Applicant pled true to violating the terms of his community supervision. After the revocation proceeding, he received a five-year prison sentence for Count 2.
In the State's Motion to Revoke Community Supervision, filed May 8, 2019, at issue in this case, the listed violations include: failing to pay various costs at the time of his sentence, and failing to pay fees on or "within 30 days from October 7, 2013"; failing to pay supervision fees on or before the 10th day of each month from "April through December, 2016[,] January through December, 2017[,] January through July of 2018[,] and January through April, 2019"; his admitting to "consuming Methamphetamine on or about March 28, 2019"; and his having been "unsuccessfully discharged" from his continuum of care program at the Salvation Army on March 26, 2019. Several of the listed violations occurred within the first five years of Applicant's sentence. The State had previously filed a Motion to Revoke Community Supervision on August 13, 2018, which included several other violations that had occurred within five years of Applicant's sentence, but the State later withdrew this motion on October 26, 2018.
As part of his plea deals, Applicant waived his right to appeal both his initial conviction and, later, his subsequent revocation. In 2020, the State notified Applicant that the maximum authorized community supervision period for Count 2 was, in fact, only five years, not ten. Accordingly, Applicant filed an application for writ of habeas corpus in the county of conviction, alleging that his five-year prison sentence is void because the trial court lacked jurisdiction to revoke his community supervision in 2019, and that his revocation counsel provided ineffective assistance. TEX. CODE CRIM. PROC. art. 11.07.
See "State's Notice Under 39.14 C.C.P." at 2 ("[U]nder Art. 42A.053 § (d)(2)(B)(ii) V.A.C.C.P., the maximum period of probation for a third degree felony under Chapter 481 of the Texas Health and Safety Code Ann. is five years."). The State provided notice pursuant to its continuing duties under Article 39.14(k) of the Code of Criminal Procedure. Tex. Code Crim. Proc. art. 39.14(k). According to the State's notice:
The final Motion to Revoke was filed after the defendant's five year probationary period had ended. What this means is that the trial court did not have jurisdiction to revoke the defendant's probation and the sentence of 5 years confinement in the Texas Department of Criminal Justice — Institutional Division is VOID.
Id. (citing Coffey v. State , 500 S.W.2d 515, 516 (Tex. Crim. App. 1973) ).
Given its holding today, the Court apparently finds it unnecessary to address Applicant's claim that his revocation counsel was ineffective. I would conclude that, even if Applicant's substantive claim were cognizable, he would be estopped from asserting it now. See Ex parte Williams , 65 S.W.3d 656, 660 (Tex. Crim. App. 2001) (Keller, P.J., concurring) ("By accepting the plea agreement, appellant gained a bargained-for benefit that should now estop him from challenging the trial court's authority."); Deen v. State , 509 S.W.3d 345, 351 (Tex. Crim. App. 2017) ("Estoppel by judgment turns on acceptance of benefits."); Rhodes v. State , 240 S.W.3d 882, 891 (Tex. Crim. App. 2007) (explaining that the principle of "estoppel by judgment" embraces those who accept the benefit of, among other things, "a judicial order," and that "[t]he only exception to this principle is for challenges to the subject-matter jurisdiction of the court rendering the judgment"). Based on that conclusion, I would also hold that, even as of the time of the revocation proceeding itself, any objection to revoking Applicant's community supervision would likewise have been estopped, and that Applicant's initial trial counsel should never have agreed to the illegally prolonged period of community supervision in the first place. In that event, Applicant's revocation counsel cannot be found to have been ineffective; only (perhaps) his initial trial counsel, for advising him (if he did) to enter into such an unlawful plea agreement in the first place. But Applicant (inexplicably) fails to challenge the effectiveness of his initial trial counsel in his writ application.
The Court should not even consider granting relief without first clarifying whether Applicant's first claim, which is grounded on an argument that the trial court lacked authority to revoke his community supervision during the imposed supervisory period (but after the expiration of the statutorily authorized period), is even cognizable under Article 11.07 of the Texas Code of Criminal Procedure.
II. COGNIZABILITY
A. This Issue Was Anticipated in Pedraza v. State
This Court has not, to my knowledge, directly addressed whether a trial court lacks jurisdiction or authority to revoke community supervision where the period of supervision imposed is longer than what is authorized by law, the revocation occurs after the authorized period expires, but the revocation also occurs within the actual (even if unauthorized) period that was imposed pursuant to an agreement by the parties. The closest case to this one is Pedraza v. State , which involved a defendant who received a two-year community supervision period for a misdemeanor offense of assault, which authorized a maximum community supervision period of one-year. 562 S.W.2d 259, 259 (Tex. Crim. App. 1978). On direct appeal , this Court rejected the defendant's argument that the order placing him on community supervision was "void ab initio," holding instead that "the order was void only to the extent it purported to subject appellant to probationary supervision beyond the time authorized by law." Id. at 260. Ultimately, because the State filed its motion to revoke within the authorized one-year term, the trial court "acted within its power when it revoked [the] probation." Id.
This Court's precedent makes clear the trial court would not have jurisdiction over the case if the period of community supervision ended and only then did the State seek to revoke it. Ex parte Moss , 446 S.W.3d 786, 793 (Tex. Crim. App. 2014).
The Court in Pedraza also stated: "Had the maximum period of probation to which appellant could lawfully be subjected (one year) expired prior to the violation and revocation of his probation, a different situation would be presented." Id. (emphasis added). That different situation is nearly identical to what happened in Applicant's case. Several of the violations alleged in the State's motion occurred within the first five years, but unlike in Pedraza , the State here did not file its motion to revoke Applicant's community supervision until after the statutorily authorized period had expired.
The parties and habeas court all seem presently to agree that because of the timing of the State's filing, the trial court lacked jurisdiction to hear the motion and to revoke Applicant's community supervision, and therefore the sentence and judgment in Count Two are entirely "void." But the cases cited in support of this outcome by the parties involve illegal sentences , not unauthorized periods of community supervision. And no one has begun to offer a good explanation for why the issue relating to the unauthorized period of community supervision could not have been, or should not have been, raised and disposed of on direct appeal.
These cases include Ex Parte Rich , 194 S.W.3d 508, 511 (Tex. Crim. App. 2006) ("The resolution of this case depends on whether Applicant's sentence is actually illegal."), and Ex parte Beck , 922 S.W.2d 181, 182 (Tex. Crim. App. 1996) ("Applicant's sentence of twenty-five years exceeds the statutory maximum and is unlawful."). The convicting court also cites Prior v. State , 795 S.W.2d 179, 183 (Tex. Crim. App. 1990), Pedraza , and Coffey . Prior does not involve an unauthorized period of community supervision, and it primarily supports the proposition that the State must file its motion to proceed to adjudication, and the capias must be issued, prior to the expiration of the supervisory term. Id. at 184. Prior , like Coffey , does not directly control Applicant's case. See Coffey , 500 S.W.2d at 516–17 ("In order for the Court to have jurisdiction to revoke probation both a motion to revoke probation and a capias for the arrest of the appellant must be issued prior to the termination of the period of probation. In this case the motion had not been filed prior to that time.") (citations omitted) (emphasis added).
Applicant waived his right to appeal, and presumably also his right to raise any issues that might have been capable of being raised and addressed in such an appeal. As I see it, if Applicant had raised the issue of the unauthorized length of his community supervision on habeas during the period of his community supervision, he would have had to invoke Article 11.072 (providing the "Procedure" for habeas corpus "in Community Supervision Case[s]"). Tex. Code Crim. Proc. art. 11.072. But Article 11.072 itself seems to preclude relief for any claims that could have been obtained by resort to a direct appeal. See id. , at § 3(a) ("An application may not be filed under this article if the applicant could obtain the requested relief by means of an appeal under Article 44.02 and Rule 25.2, Texas Rules of Appellate Procedure."); see also Ex parte Wilson , 171 S.W.3d 925, 928 (Tex. App.—Dallas 2005, no pet.) ("An application may not be filed under article 11.072 if the applicant could obtain the requested relief by means of an appeal. See id. § 3(a)."). Perhaps Applicant might have been able to square that circle by arguing that his plea counsel had been ineffective. But whether I am right about that need not be resolved here.
B. Is This Issue Even Cognizable on Habeas Corpus?
Ordinarily, post-conviction habeas corpus is not supposed to operate as a substitute for direct appeal. Ex parte Townsend , 137 S.W.3d 79, 81 (Tex. Crim. App. 2004). This means that, in post-conviction habeas proceedings, we will ordinarily not entertain record-based claims that were available to be raised on direct appeal. Id. That is the general rule when it comes to record-based claims.
The exception to that general rule was articulated in Ex parte Moss , 446 S.W.3d 786 (Tex. Crim. App. 2014). When the record shows that the trial court lacked jurisdiction to take a particular action, we will entertain such a claim, even if the applicant could have raised it on direct appeal. Id. at 789. The reason is that the trial court's jurisdiction—or, more precisely, the lack thereof—invokes category one of the Marin rubric, involving claims of defects so antithetical to the proper functioning of the criminal justice system that we will grant relief on the basis of such a claim even when raised for the first time in a post-conviction habeas corpus application. See id. at 788–89 (citing Marin v. State , 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), for the proposition that certain "requirements and prohibitions ... are essentially independent of the litigants’ wishes").
One example of such a claim is a so-called "illegal sentence" claim—a claim that the trial court imposed a sentence that was simply beyond the range of punishment legally authorized for the offense of conviction. Mizell v. State , 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) ; see Ex parte Pue , 552 S.W.3d 226, 239 (Tex. Crim. App. 2018) (Yeary, J., dissenting) ("I have no quarrel with the notion that an ‘illegal sentence’—that is to say, a sentence that on its face falls outside the range of punishment authorized by law—should be regarded as cognizable even if complained of for the first time in post-conviction habeas proceedings."). This case, however, does not involve an illegal sentence. "[I]llegal sentences and unauthorized probation orders are two different things[,]" and this Court has already authoritatively decided that "the illegal granting of community supervision should not be governed by a rule which applies to illegal sentences." Ex parte Williams , 65 S.W.3d 656, 657 (Tex. Crim. App. 2001). But the Court today avoids wrestling with that holding. If anything, this case involves a claim that Applicant's period of community supervision went beyond the range authorized by statute.
As far as I know, this Court has not yet (in a published opinion, at least) granted relief based on such a claim. There is a substantial argument to be made that we would (or should) not. I believe the issue I am pointing out is at least worthy of being addressed, and that is why I would also have ordered the parties to brief the issue of cognizability of such a claim in this case.
Moss itself involved a claim of an illegal revocation of community supervision. But in Moss , the trial court assessed a period of deferred community supervision that was within the bounds of the law. Only after that supervisory period had expired did the trial court issue a capias on the State's (otherwise timely) motion to proceed to adjudication, and the Court held, on the strength of our own cases and former Article 42.12(5)(h), that the trial court lacked jurisdiction to proceed to revocation under those circumstances. 446 S.W.3d at 790–92. Here, in contrast, both the State's motion to revoke and the capias were issued within the purported period of community supervision that was assessed. Thus, the facts of Moss , like the facts of Coffey , are distinguishable from the facts of Applicant's case.
See note 5, ante.
It seems clear that this issue could have been raised on direct appeal from the revocation proceeding, just as the appellant did in Pedraza . There, the appellant had been placed on two years’ community supervision even though the law supported a supervisory period of no greater than a year. 562 S.W.2d at 259–60. This Court nevertheless affirmed the trial court's judgment. Id. at 260. In doing so, the Court observed that the State had initiated the revocation proceeding within the one-year period of time for which the appellant could have been placed on probation. That being the case, the Court decided that the trial court did not err to revoke the appellant's probation. The Court did observe, however: "Had the maximum period of probation to which appellant could lawfully be subjected (one year) expired prior to the violation and revocation of his probation, a different situation would be presented." Id. This suggests that appellate relief would have been granted under circumstances such as Applicant has presented here.
But that does not mean that post-conviction habeas corpus relief based on such a claim would also be appropriate. In fact, the rationale of Pedraza suggests otherwise. The reason we rejected Pedraza's claim was that the trial court's assessment of an unauthorized length of supervision did not operate to render the entire supervisory period invalid, as the appellant claimed. Id. Instead, the Court held that "the order was void only to the extent it purported to subject appellant to probationary supervision beyond the time authorized by law." Id. (emphasis added). This amounts to a holding that the trial court was not entirely deprived of jurisdiction either to impose or to revoke supervision in the case just because it imposed a supervisory period that exceeded its statutory authority to grant.
Perhaps it may be argued that the claim that the trial court exceeded its statutory authority (because the motion to revoke came only after the expiration of the period for which he could legally have been subjected to supervision) constitutes a category one Marin claim. I do not know how the Court would resolve this argument. But I do not think that it rises to that magnitude of claim. In my view, Applicant should be expected to have preserved the claim by objection in the trial court and, even if not timely preserved there, at least to have raised it on direct appeal from the revocation proceeding. To proceed as the Court does today is to disregard this Court's decision in Ex parte Williams , 65 S.W.3d at 657. I would not do that.
See Davis v. State , 956 S.W.2d 555, 558 (Tex. Crim. App. 1997) ("[A] judge's lack of power or authority to act over a case has not always been held to be a question of jurisdiction, or more precisely, has not always resulted in a holding that the conviction was void and subject to collateral attack.").
Instead, I would conclude that Applicant's claim is simply not cognizable in post-conviction habeas corpus proceedings.
III. CONCLUSION
With these observations, I respectfully dissent.