Lozoya, Mathew David

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 ten-
year 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 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 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.”).