1

–

Appel lant’s Response to State’s Petition for Discretionary Review IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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 FROM THE 367 TH 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 ED WARD NOLTER Marsh & PAINE, P.C. 101 S. Woodrow Denton, TX 76205 Tel: (940) 536-377 Fax: (940) 382-4288 FDM@MARSHPAINELAW.COM EJN@MARSHPAINELAW.COM 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

ABEL ACOSTA CLERK2

–

Appel lant’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 193

–

Appel lant’s Response to State’s Petition for Discretionary Review

INDEX OF AUTHORITIES CASE PAGE Cook v. State , 902 S.W.2d 471 (Te x. 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

- 00 100

- CR, 2015 Tex. App. LEXIS 11155 (Tex. App.

— Ft. W orth Oct. 29, 2015, pet. fi led) ) passim
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 (1915) 7

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.3 d 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) 154

–

Appel lant’s Response to State’s Petition for Discretionary Review Teal v. State, 230 S.W.3d 172, 181 (Tex.Cri m.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. § 22.07 165

–

Appel lant’s Response to State’s Petition for Discretionary Review IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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 FROM THE 367 TH 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 n ot 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.6

–

Appel lant’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 agree s 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).7

–

Appel lant’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 o f 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 official8

–

Appel lant’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 hol ding 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.9

–

Appel lant’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. State 1 ) or because Appellant did not object to the entry of judgment as the defendant did in Murray v. State 2 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)10

–

Appel lant’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 Ju dge 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 primaryissue in this case was not whether the State was estopped from asserting a subjectmatter 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)11

–

Appel lant’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 o f 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 this12

– Appel lant’s Response to State’s Petition for Discretionary Review

Court create an estoppel excep tion 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 gatekee per to ensure that a misdemeanor is befor e 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:13

– Appel lant’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 Garc ia , 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 c rime 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 cou rt lacked jurisdiction. (CR 31; WHC

- Ex. 3) . The State then filed a motion to dismiss the felony counts originally alleged and proceed ed with the misdemeanor offense, which the trial court granted. (CR 34; WHC

- Ex. 4) ; (CR 36;14

–

Appel lant’s Response to State’s Petition for Discretionary Review WHC-Ex. 5)

. When the trial cou rt 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 subjectmatter 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 C15

–

Appel lant’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 tha t ‘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 jurisdic tion 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).16

–

Appel lant’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 with17

–

Appel lant’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 a18

–

Appel lant’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 subjec t-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. PRAY ER 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.19

–

Appel lant’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 5 th 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 5 th day of December, 2015.

/s/Fred Marsh FRED MARSH