Derosier, Ex Parte Andre

Opinion

PD-1510-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/7/2015 12:00:00 AM Accepted 12/7/2015 2:40:22 PM IN THE COURT OF CRIMINAL APPEALS OF TEXAS ABEL ACOSTA CLERK

CAUSE NO. PD-1510-15 __________________________

EX PARTE ANDRE DEROSIER _______________________

FROM THE SECOND DISTRICT OF TEXAS AT FT. WORTH IN CAUSE NUMBER 02-15-00100-CR AND TH FROM THE 367 JUDICIAL DISTRICT COURT DENTON, TEXAS IN CAUSE NUMBER F-2002-0330-E

__________________________________

APPELLANT’S RESPONSE TO THE STATE’S PETITION FOR DISCRETIONARY REVIEW _________________________________

FRED MARSH EDWARD NOLTER Marsh & PAINE, P.C. 101 S. Woodrow Denton, TX 76205 Tel: (940) 536-377 Fax: (940) 382-4288 FDM@MARSHPAINELAW.COM December 7, 2015 EJN@MARSHPAINELAW.COM

1 – Appellant’s Response to State’s Petition for Discretionary Review TABLE OF CONTENTS PAGE

TABLE OF CONTENTS 2

INDEX OF AUTHORITIES 3

STATEMENT REGARDING ORAL ARGUMENT 5

ARGUMENT 6

PRAYER 18

CERTIFICATE OF COMPLIANCE & SERVICE 19

2 – Appellant’s Response to State’s Petition for Discretionary Review INDEX OF AUTHORITIES

CASE PAGE

Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995) 16

DeDonato v. State, 819 S.W.2d 164 (Tex.Crim.App.1991) 14

Ex parte Armstrong, 110 Tex.Cr.R. 362, 8 S.W.2d 674 (1928) 7

Ex parte Derosier, No. 02-15-00100-CR, 2015 Tex. App. LEXIS 11155 passim (Tex. App.—Ft. Worth Oct. 29, 2015, pet. filed))

Ex parte Moss, 446 S.W.3d 786 (Tex. Crim. App. 2014) 11

Ex Parte Sledge, 391 S.W.3d 104 (2013) 14

Ex parte Williams, 65 S.W.3d 656 (Tex.Crim.App.2001) 9

Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969 7 (1915)

Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Crim.App. 1980) passim

Hall v. State, 225 S.W.3d 524, 538 (Tex. Crim.App.2007) 17

Marin v. State, 851 SW2d 275 (Tex.Crim.App.1993) 12

McKinney v. State, 207 SW3d 366 (Tex.Crim.App.2006) 17

Murray v. State, 302 S.W.3d 874 (Tex.Crim.App. 2009) 10

Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App. 2007) passim

State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App.1996) 8

Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990) 15

3 – Appellant’s Response to State’s Petition for Discretionary Review Teal v. State, 230 S.W.3d 172, 181 (Tex.Crim.App.2007) 15

United States v. Cotton, 535 U. S. 625 (2002) 8

CONSTITUTIONS AND STATUTES PAGE

Tex. Const. Art. 1§ 10 16

Tex. Const. Art. 5 § 8

Tex. Code Crim. Proc. art. 4.05 17

Tex.Code Crim. Proc. art. 21.26 7

TEX. PENAL CODE ANN. § 22.07 16

4 – Appellant’s Response to State’s Petition for Discretionary Review IN THE COURT OF CRIMINAL APPEALS OF TEXAS

FROM THE SECOND DISTRICT OF TEXAS AT FT. WORTH IN CAUSE NUMBER 02-15-00100-CR AND TH FROM THE 367 JUDICIAL DISTRICT COURT DENTON, TEXAS IN CAUSE NUMBER F-2002-0330-E __________________________________

APPELLANT’S RESPONSE TO THE STATE’S PETITION FOR DISCRETIONARY REVIEW _________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Comes now Appellant, by and through his attorney of record Mr. Fred Marsh,

and respectfully urges this Court to deny the State’s petition for discretionary review of

the above named cause.

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not necessary because this Court’s precedent regarding subject-

matter jurisdiction is firmly established and will not aid the Court in its decision to deny

the State’s petition.

5 – Appellant’s Response to State’s Petition for Discretionary Review ARGUMENT

The State has presented one issue for this Court’s review. The very wording of

the issue shows that State lacks a fundamental understanding of subject-matter

jurisdiction and its importance to any court’s authority to act lawfully. The Second

Court of Appeals correctly interpreted this Court’s precedent based upon the facts of

the case and the State’s petition should be refused.

The State’s question is:

“If a defendant agrees to plead to a lesser offense, that is not actually a lesser included offense, of an indicted offense over which the trial court has proper subject-matter jurisdiction, can a defendant later attack that bargained-for judgment based on a subject-matter jurisdiction claim?” (PDR 2)

The Texas Constitution, statutes, and this Court’s precedent affirmatively decide

this issue against the State. However, before Appellant begins his legal analysis on this

issue, this Court should be cognizant of two (2) important facts. First, the State

admitted during its opening argument to the trial court that “[a]s far as subject-matter

jurisdiction, this Court did not have subject-matter jurisdiction because a terroristic

threat is not a lesser included, but Appellant is estopped from making those claims

now.” (2 RR 12). Second, the trial court found it did not have subject-matter

jurisdiction but denied Appellant’s writ because it found Appellant’s sentence was an

illegally lenient sentence and Appellant was estopped from challenging it. (CR 91-94). 6 – Appellant’s Response to State’s Petition for Discretionary Review The Court of Appeals noted this distinction in its opinion, “* * * The State, the trial

court, and Derosier all agree that the trial court lacked subject-matter jurisdiction.” Ex

parte Derosier, No. 02-15-00100-CR, 2015 Tex. App. LEXIS, at 11155 *4 (Tex.

App.—Ft. Worth Oct. 29, 2015, pet. filed)]).

The law is not as muddied as the State asserts. (PDR 9) In fact, the Court of

Appeals “blind reliance on subject-matter jurisdiction” was correct as to the law and as

the facts of this case point out. (PDR 11). “* * * Jurisdiction may be concisely stated to

be the right to adjudicate concerning the subject matter in a given case. 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 it acts without

validity.” Ex parte Armstrong, 110 Tex.Crim. 362, 8 S.W.2d 674, 676 (App.1928).

Furthermore, due process requires that a criminal action in a state court must be before

a court of competent jurisdiction. Frank v. Mangum, 237 U.S. 309, 326 (1915).

Article 5 § 8 of the Texas Constitution confers power on Texas District Courts.

Article 4.05 of the Texas Code of Criminal Procedure gives District Courts their

jurisdiction. Tex.Code Crim. Proc. art. 4.05 states:

“District courts and criminal district courts shall have original jurisdiction in

criminal cases of the grade of felony, of all misdemeanors involving official

7 – Appellant’s Response to State’s Petition for Discretionary Review misconduct, and of misdemeanor cases transferred to the district court under Article

4.17 of this code.”

Most importantly, subject-matter jurisdiction cannot be conferred by agreement

of the parties. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Cr.App.1980); State v.

Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App.1996), overruled on other grounds by

State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002); Ex Parte Sledge, 391

S.W.3d 104, 108 fn. 23 (2013)(citation to Garcia); see also United States v. Cotton,

535 U. S. 625, 630 (2002)("[S]ubject-matter jurisdiction, because it involves the court's

power to hear a case, can never be forfeited or waived.") The Court of Appeals

embraced this when it affirmatively held that “[i]t is axiomatic that subject-matter

jurisdiction cannot be conferred by agreement of the parties; jurisdiction must be vested

in a court by constitution or statute.” Derosier at *5 (citations omitted).

The State is challenging the Court of Appeals correct holding because it “did not

consider that the trial court had jurisdiction of Appellant’s originally-charged case, and

the lesser offense was agreed to by the parties after jurisdiction had already been

established.” (PDR 4). The State provides no supporting law or authority for this

assertion. Furthermore, this is incorrect.

8 – Appellant’s Response to State’s Petition for Discretionary Review The entire crux of the State’s argument is that Appellant cannot challenge his

conviction because he received an illegal sentence (Rhodes v. State1) or because

Appellant did not object to the entry of judgment as the defendant did in Murray v.

State2 and estopped from challenging his conviction. The problem with the State’s

argument is that this Court has consistently held that challenges to the subject-matter

jurisdiction are immune to any of the various forms of estoppel. Ex parte Williams, 65

S.W.3d 656, 659-60 (Tex.Crim.App.2001) (Keller, P.J. concurring)(“Subject matter

jurisdiction is immune to estoppel considerations, * * *))

The Court of Appeals correctly stated that there was no question in Rhodes that

the trial court had subject-jurisdiction over the offenses. The issue in Rhodes was that

it was an illegal sentence. In Rhodes, all of the offenses were for crimes that the trial

court had subject-matter jurisdiction. In this case, Appellant did not receive or suffer

from an illegal sentence. Appellant suffers from an illegal conviction because the trial

court lacked subject-matter jurisdiction. There is a difference. An illegal sentence

presupposes that the conviction was lawful. In this case, the State knowingly,

voluntarily, and intelligently dismissed the felony counts for which the trial court had

jurisdiction. (CR 34; WHC-Ex. 4). Likewise, the State knowingly, voluntarily, and

intelligently amended the indictment to allege a misdemeanor for which the trial court

1 240 S.W.3d 882 (Tex. Crim. App. 2007) 9 – Appellant’s Response to State’s Petition for Discretionary Review did not have jurisdiction. (CR 31; WHC-Ex. 3). The State’s attorney is responsible for

the pleadings in a criminal action, not the defendant.

The other crux of the State’s argument is based in part on this Court’s decision in

Murray v. State. Murray was a unanimous decision authored by Presiding Judge

Keller. In Murray, the defendant had agreed to plead to a misdemeanor for which the

trial court lacked subject-matter jurisdiction. After the trial court took the case under

advisement, the defendant retained new counsel who filed a motion to revoke the

defendant’s plea of guilt. Id. The trial court denied defendant’s motion, convicted him

of the misdemeanor offense, and the defendant appealed his conviction. Id. The primary

issue in this case was not whether the State was estopped from asserting a subject-

matter jurisdictional claim but if the defendant could withdraw his guilty plea, with

reason, prior to the trial court rendering a judgment. Id at 883.

The State’s entire theory regarding this is based upon this Court’s statement in

Murray addressing estoppel which states:

“The State advances a number of theories of estoppel that it believes prevents appellant from challenging the judgement in this case: invited error, estoppel by judgment, estoppel by contract, promissory estoppel, and quasi-estoppel. We assume, without deciding, that the State is not barred by a subject matter jurisdiction claim.” Id. at 882.

2 302 S.W.3d 874 (Tex. Crim. App. 2009) 10 – Appellant’s Response to State’s Petition for Discretionary Review However, this assumption appears to have been resolved in Murray itself and

this Court’s recent unanimous decision in Ex parte Moss, 446 S.W.3d 786, 788-89

(Tex. Crim. App. 2014).

Prior to this statement in Murray, this unanimous Court addressed the State’s

argument regarding the issue that public policy favors and encourages plea bargaining

in criminal cases with Presiding Judge Keller holding:

“Even if the policy of encouraging plea bargaining were considered, the State has the ability to achieve the practical result reached in cases like this without running afoul of the statutory scheme. The State could obtain an indictment, or a waiver of indictment from the defendant, for a felony offense that does include the misdemeanor offense the parties wish to be the subject of a plea-bargained judgment. Or perhaps the felony prosecutor could obtain the cooperation of a county attorney or other prosecutor in misdemeanor cases to plead the defendant to the misdemeanor in question in a court that has misdemeanor jurisdiction. In either event, the plea could be made in exchange for dismissal of the charged offense with prejudice. These alternate methods of handling the plea would avoid the potential double jeopardy problems associated with convicting someone of an offense that is not in fact a lesser-included offense of the offense charged.” Id. at 881 (internal citations omitted, emphasis added).

It appears that this Court answered its own question regarding estoppel and

provided the solution for issues, such as those presented in this case, when the State

and the defendant agree to plead to a misdemeanor in district court.

Furthermore, this Court’s solution begs the question, if this Court would not

carve out a subject-matter jurisdiction exception for public policy then how could this 11 – Appellant’s Response to State’s Petition for Discretionary Review Court create an estoppel exception when subject-matter jurisdiction is an “absolute

systemic requirement[-] * * * and [is] not forfeitable?” Marin v. State, 851 SW2d 275

(Tex.Crim.App.1993.) Subject-matter jurisdiction is “independent of the litigant’s

wishes. Implementation of these requirements is not optional and cannot, therefore, be

waived or forfeited by the parties.” Marin at 279.

Furthermore, Tex.Code Crim. Proc. art. 21.26 statutorily provides the solution as

articulated in Murray. It states:

“Upon the filing of an indictment in the district court which charges an offense over which such court has no jurisdiction, the judge of such court shall make an order transferring the same to such inferior court as may have jurisdiction, stating in such order the cause transferred and to what court transferred.” (emphasis added).

The plain wording of the statute creates a requirement for the trial court and not

of Appellant. This is a statutory requirement of the trial court to act as the gatekeeper to

ensure that a misdemeanor is before a court of competent jurisdiction. When the State

amended the indictment to include a misdemeanor and then dismissed all of the felony

counts, the trial court was required to sua sponte transfer the case “to such inferior

court as may have jurisdiction.” Id. The trial court did not do this.

In Moss this unanimous Court explained the importance of jurisdiction as

follows:

12 – Appellant’s Response to State’s Petition for Discretionary Review “We have held that a lack of personal or subject-matter jurisdiction deprives a court of any authority to render a judgment. See Garcia, 596 S.W.2d at 527 (quoting Ex parte Armstrong, 110 Tex. Crim. 362, 366, 8 S.W.2d 674, 675-76 (1928) (stating that "[u]nless 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.")). We have further explained that when a court acts without jurisdiction, such as by entering a judgment without the necessary authority to do so, the purported action taken by the court is void. See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (identifying a lack of personal or subject-matter jurisdiction as reasons a judgment would be void). * * * In contrast, if a defendant confesses and is convicted at trial because he is guilty of the crime committed, but the court lacked subject-matter or personal jurisdiction over the defendant, the judgment of conviction is void. See Marin, 851 S.W.2d at 279 (citing Garcia, 596 S.W.2d at 527).” Moss, at 788-789. (Emphasis added).

This is exactly the case before this Court. It does not matter if Appellant

accepted the plea bargain advanced by the State, that it was beneficial to him, or that he

waited twelve (12) years to file his writ challenging the jurisdiction of the convicting

court.

This is not a case where Appellant took his case to trial and requested a jury

instruction for a lesser-included offense. The facts of this case show that it was the

State who amended the indictment to include an offense that was a misdemeanor for

which the trial court lacked jurisdiction. (CR 31; WHC-Ex. 3). The State then filed a

motion to dismiss the felony counts originally alleged and proceeded with the

misdemeanor offense, which the trial court granted. (CR 34; WHC-Ex. 4); (CR 36;

13 – Appellant’s Response to State’s Petition for Discretionary Review WHC-Ex. 5). When the trial court granted the State’s motion to dismiss on the felony

counts, it lost jurisdiction over Appellant because the amended indictment failed to

charge a felony for which terroristic threat is a lesser-included offense.

The State is correct in that there are two (2) cases where estoppel bared subject-

matter jurisdiction claims. (PDR 9). The State cites Ex parte Sledge, 391 S.W.3d 104,

108 (Tex.Crim. App.2013) and DeDonato v. State, 819 S.W.2d 164, 166-67

(Tex.Crim.App.1991). Id. These cases are easily distinguishable and are not applicable

to the case at bar. This Court denied habeas relief in Sledge because the defendant

raised his jurisdictional claim in a second writ and not his first. Sledge at 111. This was

Appellant’s first writ of habeas corpus.

DeDonato is inapplicable and does not stand for the proposition the State

asserts. The State relies on Justice Maloney’s concurrence in that case regarding

estoppel being applied to subject-matter jurisdiction. (PDR 9). Justice Maloney agreed

with the decision but not with the majorities reasoning. DeDonato at 167. In particular,

Maloney disagreed with the decision because it failed to account for the various other

provisions in the Code of Criminal Procedure that define the jurisdictional limits of the

various courts. In any event, this Court held that jurisdiction was established because at

the time the law allowed for the offense to be prosecuted as a Class B or Class C

14 – Appellant’s Response to State’s Petition for Discretionary Review misdemeanor. Id at 166. Therefore, the trial court did have subject-matter jurisdiction.

Dedonato relied on Studer v. State, 799 S.W.2d 263, 267 fn. 7 (Tex.Cr.App.1990).

Since Dedonato this Court has has addressed Justice Maloney’s concerns by

addressing Studer in several cases. As it applies to determining subject-matter

jurisdiction, this Court stated in Teal v. State, 230 S.W.3d 172, 181

(Tex.Crim.App.2007):

“Implicit within both Studer and Cook is that ‘the offense’ charged must be one for which the trial court has subject-matter jurisdiction. Although the ‘indictment’ provision of the constitution explicitly speaks only of the two requirements of ‘a person’ and ‘an offense,’ the constitution also sets out the subject-matter jurisdiction of Texas courts. An indictment must also satisfy the constitutional requirement of subject-matter jurisdiction over ‘an offense.’” (emphasis added, footnote omitted).

The indictment “must be capable of being construed as intending to charge a

felony (or a misdemeanor for which the district court has jurisdiction).” Teal at 181. As

it pertains to the case at bar, the State failed to amend the indictment charging a felony

or misdemeanor for which the trial court had subject-matter jurisdiction. The amended

indictment added Count Seven (7) which reads:

“On or about April 27th, 2001, the [Appellant] did then and there threaten [the alleged victim] with an offense involving violence and [Appellant] did that with the intent to place [the alleged victim] in fear of imminent serious bodily injury, in Denton County, Texas, against the peace and dignity of the state.” (CR 31; WHC-Ex. 3).

15 – Appellant’s Response to State’s Petition for Discretionary Review The State tracked the language of the misdemeanor offense of Terroristic Threat.

TEX. PENAL CODE ANN. § 22.07 (a)(2)(West 1994)(CR. 52, WHC-Ex. 11). The

statute at the time of Appellant’s trial and alleged plea read:

“(a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:

(2) place any person in fear of imminent serious bodily injury;”

However, this is not an offense for which the district court had subject matter

jurisdiction. The offense alleged was a Class B misdemeanor (instead of a Class A

misdemeanor, which the judgment reflects). The statute regulating punishment for the

offense of Terroristic Threat at the time read:

“An offense under Subdivision (1) or (2) of Subsection (a) is a Class B misdemeanor. An offense under Subdivision (3) of Subsection (a) is a Class A misdemeanor. An offense under Subdivision (4) of Subsection (a) is a felony of the third degree.” TEX. PENAL CODE ANN. § 22.07 (b)(West 1994)(CR 52; WHC-Ex. 11).

Article 1 § 10 of the Texas Constitution requires that unless waived by the

defendant, the State must obtain a grand jury indictment in a felony case. Without an

indictment or valid waiver a District Court does not have jurisdiction over that case.

Cook v. State, 902 S.W.2d 471, 475-76 (Tex. Crim. App. 1995) (collecting cases and

stating, "Jurisdiction vests only upon the filing of a valid indictment in the appropriate

court."). For an indictment to be constitutionally valid and vest a District Court with 16 – Appellant’s Response to State’s Petition for Discretionary Review subject-matter jurisdiction it must meet the test enunciated in Teal v. State, 230

S.W.3d 172, 179-181 (Tex.Crim.App.2007)(citing Cook v. State, 902 S.W.2d 471

(Tex. Crim. App. 1995)).

On its face the amended indictment failed to allege an offense for which the

District Court had subject-matter jurisdiction because the charged misdemeanor did not

allege a “misdemeanor[] involving official misconduct” nor was it a misdemeanor case

that was transferred to this Court under Article 4.17 of the Penal code. See Tex.Code

Crim. Proc. art. 4.05. “[T]he indictment, * * *, must be capable of being construed as

intending to charge a felony” (or a misdemeanor for which the district court has

jurisdiction). Teal at 181. There is absolutely no evidence in the record that the

amended indictment was intended to charge a felony. Ergo, the trial court lacked

subject-matter jurisdiction to accept Appellant’s plea.

The State’s assertion that this Court should write on the issue because these

specific facts have not been decided by this Court is unnecessary. (PDR 9). The State

primarily relies on Hall v. State, 225 S.W.3d 524, 537-38 (Tex. Crim. App. 2007)

(Keller, P.J., dissenting) (discussing the doctrine of "beneficial acquiescence") and

McKinney v. State, 207 S.W.3d 366, 376 (Tex. Crim. App. 2006)(Keller, P.J.

concurring). However, both of these cases are inapplicable because they deal with a

17 – Appellant’s Response to State’s Petition for Discretionary Review defendant requesting a lesser-included offense during trial and do not address the trial

court’s subject-matter jurisdiction.

Finally, the State’s argument that it has been prejudiced is completely without

merit. (PDR 13). As previously argued, it was the State who amended the indictment

and requested that the felony counts be dismissed. Had the State wanted to address

this issue it should have done so at trial and not after Appellant filed his writ of habeas

corpus.

The reason it is unnecessary to write on this issue is because this Court has

consistently held that subject-matter jurisdiction cannot be conferred by agreement of

the parties. Supra. Without jurisdiction, a court as no authority to act, including

accepting a plea bargain for which it lacks jurisdiction. Supra. The State’s petition

should be denied.

PRAYER

The Second Court of Appeals correctly decided the issue based upon this

Court’s precedent and the facts. This Court should deny the State’s petition for

discretionary review because the law and this Court’s precedent are well established in

this area.

18 – Appellant’s Response to State’s Petition for Discretionary Review Respectfully Submitted,

/s/Fred Marsh FRED MARSH SBOT# 13016000 EDWARD NOLTER SBOT#24081073 Marsh& Paine, P.C. 101 S. Woodrow Denton, TX 76205 Tel: (940) 382-4200 Fax: (940) 382-4288 FDM@MARSHPAINELAW.COM EJN@MARSHPAINELAW.COM

CERTIFICATE OF COMPLIANCE

Appellant certifies that the this reply brief in the instant cause contained a word count of 3,652, said count being generated by the computer program Microsoft Word that was used to prepare the document.

Signed this, the 5th day of December, 2015.

/s/Fred Marsh FRED MARSH

CERTIFICATE OF SERVICE

A copy of the foregoing Appellant’s Brief has been forwarded to the District Attorney of Denton County, Texas on this the 5th day of December, 2015.

19 – Appellant’s Response to State’s Petition for Discretionary Review