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Deen v. State

Court of Criminal Appeals of Texas

February 15, 2017

PHILLIP DEVON DEEN, Appellant
v.
THE STATE OF TEXAS

         ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE ELEVENTH COURT OF APPEALS TAYLOR COUNTY

          Yeary, J., delivered the opinion of the Court in which Keller, P.J., and Keasler, Hervey, Richardson, Newell, Keel, and Walker, JJ. joined. Alcala, J., filed a dissenting opinion.

          OPINION

         After being released from the penitentiary earlier than permitted by the statutory minimum sentence for his crime, Appellant was convicted of another crime, and his sentence was enhanced by his prior conviction. He argued on appeal that his prior judgment of conviction was void because it imposed confinement for less time than the statutory minimum and that, because it was void, it should not have been used to enhance his sentence for a subsequent offense. We hold that an appellant may not reap the benefit of an illegally lenient sentence and then, once he has discharged that sentence, invoke the illegal lenity in an attempt to prohibit the use of that conviction to enhance the sentence for a subsequent offense.

         BACKGROUND

         After violating the conditions of his deferred adjudication, Appellant was adjudicated guilty of aggravated robbery, a first degree felony, Tex. Penal Code § 29.03, and possession of cocaine, a third degree felony.[1] Tex. Health & Safety Code § 481.115(c). Although a first degree felony carries a minimum sentence of five years, [2] the adjudicating court sentenced Appellant to only four years in the penitentiary for the aggravated robbery, to be served concurrently with a four-year sentence for the cocaine possession. He was released from prison approximately nine months before the minimum sentence authorized by statute would have expired.[3]

         Thirty days after he got out of the penitentiary for the aggravated robbery and cocaine possession offenses, Appellant was caught with cocaine again. This time, he possessed less than one gram, making the offense a mere state jail felony. Tex. Health & Safety Code § 481.115(b). However, the State pled Appellant's prior aggravated robbery conviction in the indictment in order to enhance the punishment range to that of a third degree felony. Tex. Penal Code § 12.35(c)(2)(A); Tex. Code Crim. Proc. art. 42.12 § 3g(a)(1)(F). The jury found Appellant guilty, and he elected to have the trial court assess punishment. At sentencing, Appellant pled "true" to the enhancement alleging the prior aggravated robbery conviction, and he admitted to the aggravated robbery conviction on cross examination.[4] The State introduced Appellant's pen packet, which included the judgments from his prior aggravated-robbery and possession-of-cocaine convictions. The trial court found the aggravated robbery allegation to be true and assessed punishment at four years' confinement in the penitentiary, which was within the two-to-ten-year range for third degree felonies. Tex. Penal Code § 12.34(a). Had the offense been punished as a state jail felony, the maximum term of confinement would have been two years. Tex. Penal Code § 12.35(a).

         On appeal, Appellant contended that because his aggravated robbery sentence was shorter than the statutory minimum, the judgment imposing it was void, and his prior conviction was therefore unavailable to enhance his sentence in this case. On this basis, the Eleventh Court of Appeals reversed the trial court's judgment with respect to Appellant's punishment and remanded the cause for a new punishment hearing. Deen v. State, No. 11-13-00271-CR, 2015 WL 6123728, at *7 (Tex. App.-Eastland Oct. 15, 2015) (mem. op., not designated for publication).

         This Court granted the State's petition for discretionary review. The State argues, as it did before the court of appeals, that Appellant should be estopped from disputing the validity of his aggravated robbery conviction. The State posits two theories of estoppel. First, the State contends that, because Appellant has already "accepted the benefit" of an illegally lenient sentence, he should not be heard to complain of its illegality now. Second, the State argues that, by pleading "true" to the enhancement paragraph, Appellant caused the State to forgo the opportunity to introduce evidence at the punishment phase to show that the illegally lenient sentence was the product of a negotiated guilty plea. If the illegally lenient sentence was in fact the product of a plea bargain, the State maintains, then Appellant should be estopped from challenging it for that reason as well.[5]

         Appellant accepted the benefit of his illegally lenient sentence, and we hold that he is therefore estopped by the prior judgment from collaterally attacking the validity of the conviction it imposed. Because Appellant is estopped under this estoppel-by-judgment principle, we need not reach the question of whether he should also be estopped by his plea of "true" to the enhancement (or by any plea bargain for the illegally lenient sentence that the State may have been able to prove absent the Appellant's plea of "true"-a kind of estoppel-by-contract principle). Nor need we decide whether his prior conviction is void.

         ANALYSIS

         The Opinion Below

         The court of appeals analogized this case to Wilson v. State, 677 S.W.2d 518 (Tex. Crim. App. 1984). Deen, 2015 WL 6123728, at *7. Like Appellant, Wilson was sentenced to four years' incarceration for a first degree felony, which has a statutory minimum sentence of five years. 677 S.W.2d at 521. The State then used that felony conviction to enhance his punishment for a subsequent attempted burglary to life imprisonment. Id. at 520. We held that the prior conviction was void and should not have been used to enhance punishment, and we remanded for resentencing. Id. at 524. But we were not called upon to address, and did not address, the issue of estoppel in Wilson. The primary question in this case is not whether an illegally lenient sentence is void, but whether Appellant is estopped from complaining of the illegal lenity of his sentence after he has already taken advantage of that lenity. In short, can estoppel by judgment bar collateral attack of an illegally lenient sentence?

         Estoppel by Judgment

         The argument that a conviction is void because the sentence is not authorized by the Legislature is subject to principles of estoppel.[6] Estoppel is a flexible doctrine that takes many forms. Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007). We explicitly described two forms of estoppel in Rhodes: Estoppel by contract and estoppel by judgment. Id. Estoppel by contract describes the situation in which "a party who accepts the benefits under a contract is estopped from questioning the contract's existence, validity or effect." Id.; 31 C.J.S. Estoppel & Waiver § 164, p. 542 (2008). Estoppel by judgment is a form of estoppel whereby a person "who accepts the benefits of a judgment, decree, or judicial order is estopped from denying the validity or propriety thereof, or of any part thereof, on any grounds; nor can he or she reject its burdensome consequences." Id.; 31 C.J.S. Estoppel & Waiver § 172, p. 553 (2008). To be estopped by a judgment, a person must accept the benefits of the judgment voluntarily. Gutierrez v. State, 380 S.W.3d 167, 178 (Tex. Crim. App. 2012). In Rhodes, we declared that "[t]he variant of estoppel at issue here is 'estoppel by judgment.'" 240 S.W.3d at 891. We concluded that a "defendant who has enjoyed the benefits of an agreed judgment prescribing a too-lenient punishment should not be permitted to collaterally attack that judgment on a later date on the basis of the illegal leniency." Id. at 892.

         Although Rhodes addressed estoppel by judgment in the context of a hypothetical plea agreement, and therefore spoke in terms of accepting the benefits of an "agreed" judgment, we have since made it clear that the focus of estoppel by judgment is the acceptance of a benefit rather than an agreement contemporaneous with the judgment. In Murray v. State, 302 S.W.3d 874, 882 (Tex. Crim. App. 2009), we characterized Rhodes as holding that "a party who accepts the benefit of a judgment that imposes an illegally lenient sentence is estopped from challenging the judgment at a later time."[7] This is the rule that applies here.

         Appellant ultimately accepted the benefit of an illegal four-year sentence upon conviction of a crime for which the Legislature has mandated a minimum sentence of five years. Approximately four years passed between the date the adjudicating court imposed the illegally lenient sentence and the date the trial court below imposed the enhanced sentence. During that time, Appellant never complained about the aggravated robbery sentence's lenity. Instead, he served his illegally lenient sentence and was content to be released from prison altogether approximately nine months early. Thus, he took full advantage of the benefit of his illegally lenient sentence, and he cannot now deny its validity.

         Appellant argues that he could not have voluntarily accepted the benefit of his aggravated robbery sentence because there is no plea agreement in the record and the sentence was "imposed" upon him by the judgment. But the question is not whether Appellant agreed to the prior judgment or negotiated for the sentence that it imposed. Unlike an estoppel by contract, which might prevent a defendant who has plea-bargained for a particular judgment from challenging its validity, an estoppel by judgment arises not when the person voluntarily agrees to the judgment, but when the person voluntarily accepts its benefits after the judgment issues. Voluntary acceptance of the benefits of a judgment can occur without an agreement. Cf. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 741 (Tex. 2005) (holding that non-signatories of a contract containing an arbitration clause who seek a direct benefit of the contract are bound by the arbitration clause). The benefit here was Appellant's release from prison approximately nine months earlier than the Penal Code would have otherwise permitted. Appellant did not challenge the illegal lenity of his aggravated robbery conviction until after he had accepted this benefit.

         The only circumstance that we have found to constitute involuntary acceptance of a benefit occurred in Gutierrez v. State, 380 S.W.3d 167 (Tex. Crim. App. 2012). In that case, the mother of four children, two of whom had special needs relating to Down's syndrome, plea bargained for probation so that she would be able to provide for her family. Id. at 170, 179. The trial court imposed a condition of probation requiring that she either obtain legal status within a year or leave the country-a condition that we found amounted to "banishment, " which violated both the United States Constitution and the Texas Constitution. Id. at 173-74. We held that the mother was not estopped from challenging the banishment condition for the first time on appeal of her probation revocation, because she had no realistic choice but to accept the illegal condition. Id. at 179.[8]

         Appellant faced no such circumstance. The specific issue Appellant complains of on appeal is not an unconstitutional condition of his community supervision, but the very benefit he accepted-the lenity of his sentence. Nothing prevented him from bringing the statutory minimum sentence to the attention of the court at the time that he was sentenced or, indeed, at any time before he was released early. It simply would not have been in his interest to do so at that time, as it may have resulted in a sentence within the statutory punishment range. Having accepted ...


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