# In the Court of Criminal Appeals of Texas

══════════ No. WR

- 92,475

- 01

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EX PARTE MATHEW DAVID LOZOYA , App licant

═══════════════════════════════════════ On Application for a Writ of Habeas Corpus Cause No. F4 6 837

- A in the 18th District Court Johnson County

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Y EAR Y , 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

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I

. B ACKGROUND 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 vio lating 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 r evocation. 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 10 th 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. T EX

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. art. 39.14(k). According to the State’s notice:LOZOYA

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Accordingly, Applicant filed an application for writ of habeas corpus in the county of convictio n, 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 T EX

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. a rt. 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 confinem ent 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, t he 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., concurrin g) (“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 o f 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 h o ld 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 h ave 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 couns el in his writ application

.LOZOYA

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argument that the trial court lacked authority to revoke his community supervision during the imposed supervisory period (but after t he expiration of the statutorily authorized period), is even cognizable under Article 11.07 of the Texas Code of Criminal Procedure.
II. C OGNIZABILITY 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 , th is 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

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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 Applic ant’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 perio d 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 an d judgment in Count Two are entirely “void.” But the cases cited in support of this outcome by the parties involve illegal sentence s , not unauthorized period s 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

ma ximum 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 tha t 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 o rder 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

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the issue re lating 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 re cord

- 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 re cord 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 wou ld have had to invoke Article 11.072 (providing the “Procedure” for habeas corpus “in Community Supervision Case[s]”). T EX

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. a rt. 11.072. But Article 11.072 itself seems to preclude relief for any claims that could have been obtained by res ort 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 p arte 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

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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 gra nt 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.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 author ized 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

sen tence

. “ [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 sent ences

. ” 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

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As far as I know , this Court has not yet (in a published opinion, at least) granted relief based on such a claim. T here is a substantial

argumen t 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 order ed the parties to brief the issue of cognizability of such a claim in this case.
Moss itself in volved 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 adjudicati on, 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 revok e 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 bee n 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.2 d 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

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the one

- year period of time for which the appellant could have been placed o n 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 th e 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 ( b ecause 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 doLOZOYA

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not know how the Court would resolve this argument. 8 But I do not think that it rise s 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 i s 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.
I II

. C ONCLUSION 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 au thority 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.”).