Ex Parte Williams

• Decision Date: 11 April 2001
• Docket Number: No. 73,845.,73,845.
• Citation: 65 S.W.3d 656
• Parties: Ex parte Jimmy Joe WILLIAMS, Jr., Applicant.
• Court: Texas Court of Criminal Appeals

65 S.W.3d 656

Ex parte Jimmy Joe WILLIAMS, Jr., Applicant.

No. 73,845.

Court of Criminal Appeals of Texas, En Banc.

April 11, 2001.

Rehearing Denied October 3, 2001.

Jimmy Joe Williams, pro se.

Catherine G. Zilahy, Asst. Dist. Atty., Dallas, for State.

Before the court en banc.

OPINION

KEASLER, J., delivered the opinion of the Court, in which MEYERS, PRICE, HOLLAND, and HERVEY, J.J., joined.

When Jimmy Joe Williams was convicted of aggravated assault, the trial judge suspended imposition of sentence and placed him on ten years' probation, despite his ineligibility for probation. The trial judge later revoked Williams's probation and sentenced him to ten years in prison. Can Williams successfully complain about the unlawful grant of probation in a habeas corpus application? We conclude that he cannot.

I. Factual and Legal Background

The trial judge entered a deadly weapon finding in the judgment suspending Williams's sentence and placing him on community supervision (probation). This finding rendered Williams ineligible for probation.¹ The trial judge later revoked Williams's probation.

Williams filed this post-conviction application for a writ of habeas corpus under Art. 11.07. To present a cognizable claim, he must show a jurisdictional defect in the convicting court or the denial of a fundamental or constitutional right.² He argues that the illegal probation order rendered his sentence illegal and, under Heath v. State,³ he is entitled to habeas relief. We filed and set this case to reexamine Heath.

II. Analysis

A.

In Heath, the defendant was granted probation despite the fact that he was statutorily ineligible.⁴ Later, the trial court revoked his probation and sentenced him to eight years in prison.⁵ On appeal, he argued that the order granting probation and the sentence imposed after revocation were both "void."⁶ He had not raised either argument in the trial court. We stated that "a defect which renders a sentence void may be raised at any time" so the defendant was "not barred from complaining of the void sentence" for the first time on appeal.⁷ On rehearing, the State argued that the defendant was estopped from complaining about his illegally-granted probation because he agreed to it in a plea bargain.⁸ We disagreed and denied the motion for rehearing.⁹

Heath raised two distinct claims. He complained about the order granting him probation, and he complained about the sentence imposed upon revocation. We incorrectly addressed both claims as though they were one. In doing so, we extended a rule regarding sentences to a defendant's claim regarding a probation order. But illegal sentences and unauthorized probation orders are two different things.

In Speth v. State,¹⁰ we explained that "community supervision is not a sentence or even a part of a sentence."¹¹ Because of this, the illegal granting of community supervision should not be governed by a rule which applies to illegal sentences. Williams fails to show any entitlement to relief under Heath because the trial court's unauthorized probation order did not constitute an illegal sentence.

B.

We still must consider whether the unlawful grant of probation entitles Williams to habeas relief. We conclude that it does not. To prevail in habeas, an applicant must show harm.¹² That is, he must prove by a preponderance of the evidence that the error contributed to his conviction or punishment.¹³ Williams alleges that, had he known that the offense was one which is not eligible for probation, he "may not have plead [guilty] at all." This speculative assertion is insufficient to establish by a preponderance of the evidence that the illegal grant of probation contributed to the voluntariness of Williams's plea. Indeed, since he received probation anyway, eligible or not, it is hard to imagine how the illegality of that probation affected the voluntariness of his plea. In any event, it certainly did not contribute to his conviction or punishment. Rather, it did just the opposite—detracted from his punishment by allowing him a suspended sentence when he was not entitled to one. Williams fails to show that he was harmed by the illegal grant of probation.

III. Conclusion

We conclude that the Heath court erred to extend a doctrine of law regarding sentences to facts involving a probation order. We specifically disavow Heath's conclusion that an unlawful grant of probation constitutes an illegal or void sentence. In addition, we conclude that Williams fails to show any entitlement to habeas relief because he fails to prove that he was harmed by the unlawful grant of probation.

IV. Judgment

Relief is denied.

KELLER, P.J., filed a concurring opinion in which HOLCOMB, J. joined.

Applicant received probation as part of a plea agreement. He challenged the validity of the plea agreement only after his probation was revoked for violating its terms. I would hold that he is estopped from doing so.

We most recently articulated the doctrine of estoppel in Prystash v. State.¹ In that case, upon the defendant's request, the trial court did not submit the anti-parties special issue to the jury at the punishment phase of trial.² On appeal, the defendant contended that an answer to the issue was required, under the facts of the case, to authorize a death sentence.³ We held that, because the defendant requested the deletion of the issue from the jury charge, he was estopped from complaining about its absence on appeal.⁴ We explained that estoppel was distinct from waiver and "is part of the definition of what can constitute error, and quite reasonably defines error of which a party may complain as excluding those actions of the trial court actually sought by the party to the tribunal."⁵

The question is whether an error capable of rendering a judgment or sentence void can be subject to estoppel. Subject matter jurisdiction is immune to estoppel considerations,⁶ but there are several other types of errors that render a judgment or sentence "void," based on lack of jurisdiction⁷ or authority,⁸ and the Texas Supreme Court has recognized that at least one of these types of errors, lack of personal jurisdiction, can be obviated by consent or waiver.⁹ Given the dearth of Texas caselaw on the relationship between estoppel and these kinds of errors, I look to other jurisdictions for guidance. After reviewing both Texas and out-of-state cases, I conclude that lack of subject matter jurisdiction is the only error that is not subject to estoppel.

California has recognized a difference between subject matter jurisdiction and "excess of jurisdiction," holding that the latter is subject to the rule of estoppel: "When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction."¹⁰ In an earlier decision, the California Supreme Court expressly had held that only subject matter jurisdiction was immune from estoppel considerations: "It has been said that `Jurisdiction of the subject matter cannot be conferred by estoppel, but one who invokes or consents to a court's jurisdiction is estopped to question it on any other ground other than that the court lacks jurisdiction of the subject matter."¹¹ In Griffin, the California Supreme Court cited its earlier precedent with approval and applied the doctrine of estoppel in a probation revocation situation.¹² Under the law in California at the time, a revocation of probation had to occur within the probationary term, but the defendant asked for, and received, a continuance of the revocation hearing to a time that was after the expiration of his probationary term.¹³ The Court held that the defendant was estopped from challenging the trial court's continuing jurisdiction to revoke.¹⁴ Recently recognizing the continuing viability of Griffin, the California court observed: "The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process."¹⁵

In Commonwealth v. Griffin, the Kentucky Supreme Court addressed a similar issue.¹⁶ The Commonwealth filed a motion to revoke the defendant's five-year probation on the ground that he had failed to make restitution payments.¹⁷ The defendant asked the trial court to extend his probation by five years instead of revoking probation and incarcerating him.¹⁸ The trial court agreed, but the defendant again violated his probation, and this time, the trial court revoked.¹⁹ On appeal, the defendant argued that the trial court lacked jurisdiction to revoke because it had no authority to extend his probation to a period longer than five years total; since appellant was already on probation for five years, a five year extension would be invalid.²⁰ The Kentucky court held that the defendant was precluded, by the doctrine of estoppel, from attacking the trial court's jurisdiction to revoke his probation.²¹ The court observed that the defendant's attack challenged jurisdiction over the particular case but was not a challenge to subject matter jurisdiction, which the court acknowledged would not be subject to estoppel.²²

The Iowa Supreme Court has distinguished subject matter jurisdiction from authority.²³ In State v. Mandicino, the court held that (1) a trial court's lack of authority to extend the term of a defendant's probation did not constitute a lack subject matter jurisdiction, and (2) this lack of authority was waived by the defendant's conduct expressly seeking the extension of his probation.²⁴

The present case involves a trial judge's lack of authority to grant probation. This lack of authority is not a subject matter jurisdiction defect; the trial court had subject matter jurisdiction to hear and decide the class of criminal cases into which appellant's case falls.²⁵ By accepting the plea...