In the Court of Criminal 

Appeals of Texas

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No. WR-92,475-01

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EX PARTE MATHEW DAVID LOZOYA,

Applicant

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On Application for a Writ of Habeas Corpus

Cause No. F46837-A in the 18th District Court

Johnson County

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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.
LOZOYA – 2

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 tenyear 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.1 After the revocation proceeding, 

he received a five-year prison sentence for Count 2. 

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.2

1 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.

2 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:
LOZOYA – 3

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.3 TEX. CODE CRIM. PROC. art. 11.07.

The Court should not even consider granting relief without first 

clarifying whether Applicant’s first claim, which is grounded on an 

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)).

3 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.
LOZOYA – 4

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.4 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.

4 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).
LOZOYA – 5

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.5 And no one has begun to offer a good explanation for why 

5 These cases include 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).
LOZOYA – 6

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.6

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 

6 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. 
LOZOYA – 7

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 postconviction habeas corpus application. See id. at 788–89 (citing Marin v. 

State, 851 S.W.3d 272, 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.
LOZOYA – 8

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.7

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 

7 See note 5, ante.
LOZOYA – 9

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 
LOZOYA – 10

not know how the Court would resolve this argument.8 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. 

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.

FILED: March 29, 2023

PUBLISH

8 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.”).