If you ever find yourself in the muddy mess of an illegal regular probation, the doctrine of estoppel just might help you clean it up.
A brand-new felony ADA—you—just inherited a big caseload from a departing coworker. There is a looming indecency with a child by contact trial on the docket where the defendant has no criminal history but a sad story, and the victim is a family member. No one in the family wants to go to trial or the young defendant to go to prison. You are green and want to be tough on crime, so when the defense attorney suggests straight probation to meet in the middle, you agree. And with the judge’s signature, you have set up yourself—and maybe some other prosecutor—for an appellate brief. It will not come right away, but it will come because community supervision is tough and many probationers fail. And if the defendant fails, the new attorney on his revocation case will trot into court wearing that silly grin we all dread. He will look at you and say, “You need to dismiss this revocation because the community supervision was illegal.”
You may not even remember the case. You stare at the paperwork, hoping that you are in the World of Wizardry whereby some white hat magic would print the words “deferred” on the paperwork. It doesn’t happen, so you berate yourself on the rookie mistake. Your first instinct is to think that the sentence might have been wrong, but the defendant got a great benefit out of it. You try to think back to law school about estoppel. Why should a defendant complain that the bargain was illegal when, with his signature, he stated he read, understood, and accepted as fact that he could be granted probation? You know it’s fair, but that knot in your stomach will just get bigger unless you get to the antacid that is Westlaw/Lexis. There you will find some cases, but not many, that may ease your pain.
Heath v. State1 is a great starting point on the journey through the muddy mess of illegal regular probations. The defendant in this case pled guilty to aggravated robbery and was placed on regular probation.2 After he was revoked and sentenced, he complained that the probation was not authorized. The court first held that both the order granting probation and the later revocation were void.3 However, the court struggled as to where the parties stood after the cause was remanded to the trial court. The State offered Popham v. State, Hartley v. State, Tritt v. State, and Branch v. State.4 The first three cases all held that the defendant cannot complain upon revocation about an illegal plea-bargained probation, while in Branch, the illegal probation was granted by the judge after the jury found the defendant guilty,5 but the holding was the same as in the other cases.
The Heath court in a plurality opinion decided to overrule itself, holding that illegal punishments are void.6 They also held that a defendant cannot be estopped from complaining about the punishment even though he agreed to it; therefore, a defendant’s guilty plea in bargained cases should be withdrawn. Ten years later, this court returned to this issue in a re-examination of Heath.
In Ex parte Williams, the defendant was granted an illegal regular probation that was later revoked.7 The majority held that without the defendant showing harm from the illegal probation, no relief can be given. However, Judge Keasler in the majority opinion abrogated the Heath decision, suggesting that it extended the law against illegal sentences too far. The court held that the illegal community supervision was not an illegal sentence because suspending a sentence and granting probation is not considered part of the sentence. Therefore, a defendant cannot challenge the punishment at any time in any forum. Presiding Judge Keller in her concurrence helps the cause of the unknowing prosecutor and defense attorney the most; there she concluded that because the defendant accepted the plea agreement and received a bargained-for benefit, he should be estopped from challenging the trial court’s authority.8
Finally, in Rhodes v. State, the Court of Criminal Appeals answered the question of estoppel.9 It comes as no surprise that Presiding Judge Keller wrote the opinion. In Rhodes, the defendant was convicted of and sentenced to 10 years for escape. However, the 10-year sentence was not ordered, as required, to run consecutively.10 (There was not conclusive evidence as to whether the sentence was entered as a plea bargain.) The defendant later committed more felonies, which were enhanced by his prior felony offenses. One of the prior enhancement offenses was the escape, which was not ordered to run consecutively. The defendant complained that because the escape conviction was void, it could not be used to enhance his later convictions.11 In the first part of its analysis, the court concluded that if there were no agreement, then Rhodes’ escape judgment would not be void.12 Because the sentence containing the irregularity could have been reformed on appeal or by nunc pro tunc, it cannot be void.13 The court then turned to the doctrine of estoppel.
Because there isn’t much Texas caselaw on estoppel in the criminal world, the court looked to the holdings of high courts in other states. Judge Keller concluded that a defendant should not be able to enjoy the benefits of a lighter punishment than the legal punishment, then attack the legality of the lighter punishment when it is in his interest to do so. This opinion, however, refused to take up the issue of punishments that are illegally harsh and whether estoppel would bar a direct attack on an illegal lenient punishment.14
Yes, in our situation the young ADA would be able to cite Williams and Rhodes for the proposition that the defendant benefitted from an illegal punishment. Now some may argue that a deferred would have been a more beneficial punishment for a defendant without an extensive criminal history. In this case the prosecutor would have to convince the judge that a cap on punishment was the benefit that the defendant had in mind when he agreed to the probation, rather than be exposed to the entire range upon revocation. If the judge agrees, the defendant gets sentenced—but your troubles may not end there.
Fast forward a few years to the same defendant on trial for a third-degree felony, which the prosecution wants to enhance to a second. Can this defendant complain again about the void sentence? Yes, he will. Will he win? All the signs say no.
1 Heath v. State, 817 S.W. 2d 335 (Tex. Crim. App. 1991)(en banc).
2 Id. at 336.
3 Id. at 337.
4 Popham v State, 154 Tex. Crim. 529, 228 S.W.2d 857 (1950); Hartley v State, 169 Tex. Crim. 341, 334 S.W.2d 287 (1960); Tritt v State, 379 S.W.2d 919 (Tex. Crim. App. 1964); Branch v. State, 477 S.W.2d 893 (Tex. Crim. App. 1972).
5 Branch, 477 S.W.2d at 893.
6 Heath, 477 S.W.2d at 339.
7 Ex Parte Williams 65 S.W.3d 656, 657 (Tex. Crim. App. 2001).
8 Id. at 660.
9 Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App 2007).
10 Id. at 884.
11 Id. at 885.
12 Id. at 888.
13 Id. citing Ex parte King 240 S.W.2d 777 (Tex. Crim. App. 1951).
14 Id. at 892.