Moss, Jecia Javette

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-76,635-03

EX PARTE JECIA JAVETTE MOSS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 20203 IN THE 86TH DISTRICT COURT

FROM KAUFMAN COUNTY

H ERVEY, J., delivered the opinion of the unanimous Court.

OPINION

Applicant, Jecia Javette Moss, pled guilty to aggravated assault and was placed on

deferred-adjudication community supervision for five years on October 4, 2000. Her

community supervision was subsequently revoked, and she was sentenced to confinement

in a state penitentiary. She now argues that the trial court lacked jurisdiction to revoke her

supervision and adjudicate her guilty because the motion to adjudicate was not timely

filed and the capias was not timely issued. We will grant relief.

F ACTS

The day Applicant’s period of community supervision expired—October 3,

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2005—the State took a motion to adjudicate and an order directing the district clerk to

issue a capias for Applicant’s arrest directly to the judge, who signed both of them.

Applicant’s supervision was subsequently revoked, and she was sentenced to twelve

years’ confinement and a $1,500.00 fine.

On April 5, 2006, at the time of sentencing, the judge notified Applicant that he

would allow her to remain at large for twelve days before turning herself in at the

Kaufman County Sheriff’s Office to carry out her sentence. During that time, Applicant

filed a notice of appeal. However, instead of reporting to the Kaufman County Sheriff’s

Office on April 17, 2006, to be taken into custody and continue the appellate process, she

absconded from the jurisdiction. Subsequently, the State asked the Dallas Court of

Appeals to dismiss Applicant’s appeal, which it did on July 25, 2006. See Moss v. State,

No. 05-06-00556-CR, 2006 WL 2053491 (Tex. App.—Dallas July 25, 2006, no pet.)

(mem. op.) (not designated for publication). Applicant was arrested more than three years

later on November 13, 2009.

E X PARTE T OWNSEND

In its findings of fact and conclusions of law, the convicting court found that, even

if the motion to adjudicate was not timely filed or the capias timely issued, Applicant’s

claim is procedurally barred because she could have raised her jurisdictional issue on

direct appeal had she not absconded from the jurisdiction. We believe the court is

referring to this Court’s decision in Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App.

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2004), in which this Court held that, when an applicant has an adequate remedy at law,

such as the appellate process, but that applicant does not make use of that remedy, the

applicant has forfeited his claim. Id. at 81–82.

Applicant can raise her claim that the trial court lacked jurisdiction to act despite this

Court’s holding in Townsend.

Because Applicant absconded, her direct appeal was dismissed, and, therefore, this

application is her first opportunity to assert this challenge. Although the capias eventually

issued by the clerk’s office was not in the appellate record, the document upon which the

Applicant relied (i.e., the order directing the clerk to issue the capias) was in that record.

In addition, Applicant raised her jurisdictional issue in her writ application and the capias

was, thereafter, included in the writ record (by order of this Court). See Ex parte Moss,

WR-76,635-03, 2014 WL 1512955 (Tex. Crim. App. Apr. 16, 2014) (per curiam) (not

designated for publication).

However, Applicant’s claim is different from the one raised in Townsend, in that

she is alleging facts that, if true, would prove that the trial court lacked jurisdiction to

revoke her supervision. In contrast, the applicant in Townsend raised an improper-

stacking claim, which was a non-jurisdictional claim. Townsend, 137 S.W.3d at 80. The

crucial difference between Townsend and the instant case is that constitutional rights can

be forfeited on habeas due to lack of action but a lack of jurisdiction cannot. Compare id.

at 81 (citing Ex parte Gardner, 959 S.W.2d 189, 191 (Tex. Crim. App. 1996), Ex parte

Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994), Ex parte Groves, 571 S.W.2d 888,

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890 (Tex. Crim. App. 1978)), T EX. C ODE C RIM. P ROC. art. 1.14(a) (“The defendant in a

criminal prosecution for any offense may waive any rights secured him by law . . .” but

not addressing jurisdiction); see also Ex parte McCain, 67 S.W.3d 204, 207 (Tex. Crim.

App. 2002) (footnote omitted) (stating that the Great Writ “is available only for relief

from jurisdictional defects and violations of constitutional and fundamental rights”), with

Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (citing Garcia v. Dial, 596

S.W.2d 524, 527 (Tex. Crim. App. 1980)) (“[A] number of requirements and

prohibitions . . . are essentially independent of the litigants’ wishes. Implementation of

these requirements is not optional and cannot, therefore, be waived or forfeited by the

parties. The clearest cases of nonwaivable, nonforfeitable systemic requirements are laws

affecting the jurisdiction of the courts.”).

We have held that a lack of personal or subject-matter jurisdiction deprives a court

of any authority to render a judgment. See Garcia, 596 S.W.2d at 527 (quoting Ex parte

Armstrong, 110 Tex. Crim. 362, 366, 8 S.W.2d 674, 675–76 (1928) (stating that “[u]nless

the power or authority of a court to perform a contemplated act can be found in the

Constitution or laws enacted thereunder, it is without jurisdiction and its acts without

validity.”)). We have further explained that when a court acts without jurisdiction, such as

by entering a judgment without the necessary authority to do so, the purported action

taken by the court is void. See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001)

(identifying a lack of personal or subject-matter jurisdiction as reasons a judgment would

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be void). Thus, for example, when a defendant is convicted at trial, but his trial counsel

was ineffective, the court had jurisdiction to hold the trial and sentence the defendant,

although defendant might later obtain relief in the form of a new trial for a constitutional

violation. In contrast, if a defendant confesses and is convicted at trial because he is guilty

of the crime committed, but the court lacked subject-matter or personal jurisdiction over

the defendant, the judgment of conviction is void. See Marin, 851 S.W.2d at 279 (citing

Garcia, 596 S.W.2d at 527).

This Court’s decision in Ex parte Sledge, 391 S.W.3d 104, 108 (Tex. Crim. App.

2013), which was handed down after Townsend, also elucidates the difference between

Townsend and the instant case. In Sledge, the applicant did not appeal his conviction, but

filed an initial writ application seeking to obtain relief, which was denied. Later, he

brought a successive writ application arguing that that trial court lost jurisdiction to

adjudicate him guilty and revoke his deferred-adjudication community supervision

because the capias for his arrest was issued three days after his supervision expired. Id. at

106. We dismissed his application because the applicant did not allege a new legal basis

or sufficiently new factual basis upon which to justify this Court’s consideration of his

subsequent writ. Id. at 106–07, 111; see T EX. C ODE C RIM. P ROC. art. 11.07, § 4. We

rejected the applicant’s allegation that he could not have discovered the factual basis for

his claim until after he filed his initial postconviction writ application because he could

have learned of the factual basis for relief he cited in his subsequent application through

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the exercise of due diligence. See Sledge, 391 S.W.3d at 106–07 (stating that “it is readily

apparent that the applicant could have easily obtained the information before now, just as

he did for the purpose of developing his current post-conviction writ application”). And

although the applicant did not cite a new legal basis as justification for this Court to

consider his subsequent writ application, we did note that a legal basis for relief was

available to him at the time he filed his initial writ in the form of a decision from this

Court. See Langston v. State, 800 S.W.2d 553, 554 (Tex. Crim. App. 1990) (per curiam),

overruled on other grounds by Harris v. State, 843 S.W.2d 34, 35 n.1 (Tex. Crim. App.

1992) (holding that the jurisdiction of a trial court to adjudicate a defendant’s guilt is lost

if the clerk fails to issue a capias as required by law). Thus, our decision in Sledge stands

for at least two principles relevant to this case: (1) jurisdictional claims are not normally

subject to typical notions of procedural default (which is why Applicant can raise her

claim here), but (2) the Legislature can permissibly restrict the cognizability of courts to

hear jurisdictional claims on habeas (which is why the applicant in Sledge could not raise

his claim in a subsequent writ application). See Sledge, 391 S.W.3d at 106–09, 111.

In sum, we hold that Townsend is not applicable to jurisdictional claims raised in

an initial writ application because, absent legislation to the contrary (such as the statute

discussed in Sledge), we have held that a lack of jurisdiction renders a judgment void and

that claims challenging a court’s lack of jurisdiction are cognizable in an initial writ

application. However, we caution individuals seeking habeas relief in a subsequent writ

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application that Sledge continues to bar an applicant from obtaining relief on a

jurisdictional claim in a subsequent application if the applicant cannot overcome

applicable procedural bars.1

L ACHES

The State argues that laches should apply to Applicant’s claim because she

voluntarily absconded from the jurisdiction of the court to avoid serving her sentence. See

Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013). It also asserts that laches should

bar our consideration of Applicant’s claim because “it is highly unlikely that the trial

court or any of its personnel, or the deputy clerks involved, would retain a distinct

memory of something as routine and commonplace as file-marking of a document and

issuance of a warrant after three or four years.”

In Perez, this Court revised its approach to laches by abandoning the more

permissive federal laches standard in favor of the Texas common-law definition of laches.

See Ex parte Perez, No. AP-76,800, slip op. at 8 (Tex. Crim. App. Oct. 8, 2014). Under

1

Addressing the procedural bar for subsequent writs and whether a jurisdictional claim is

immune to such a bar, this Court stated

Had the applicant properly raised his present claim in his original writ, we would

not hesitate to reach the merits and, if appropriate, grant relief. But in the context

of subsequent post-conviction writ applications, the Legislature has validly

exercised its constitutionally-endowed regulatory authority to make it clear that

only those claims that fit within the statutory exceptions prescribed by

Subsections 4(a)(1) and (2) of Article 11.07 are cognizable.

See Sledge, 391 S.W.3d at 108–09 (emphasis omitted).

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the common-law standard, courts consider the totality of the circumstances, including the

reasons for delay in seeking relief, the missing people or faded memories of people

material to the case, loss of evidence and trial records, the State’s diminished ability to

retry a defendant, and the State’s interest in finality. Id. at 6–8.

The doctrine of laches does not bar Applicant’s claim because the State was not

prejudiced by her tardy filing of her writ application.

In this case, however, while Applicant admittedly absconded from the jurisdiction

and did not file her initial writ application until approximately five years after she was

adjudicated guilty and sentenced, no evidence or trial records have been lost. And the

State cannot retry Applicant if she prevails on her claim, because the trial court had lost

jurisdiction to adjudicate Applicant guilty when her period of community supervision

ended. Finally, the State’s argument that it was prejudiced by diminished memories and

missing people is without merit because the resolution of Applicant’s claim turns on

documents in the record and this Court’s legal analysis. Therefore, after considering the

entire record and the totality of the circumstances, we hold that laches does not apply to

Applicant’s claim because the State was not prejudiced.

A RTICLE 42.12, S ECTION 5(h)

We now turn to the merits of Applicant’s claims and the reasons for which we

filed and set this case for submission:

whether, when the trial court signs the motion to adjudicate and directs the

district clerk to issue capias within the period of community supervision,

but the motion is file-stamped by the clerk and the pre-revocation warrant

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issued after the expiration of the period of community supervision, the trial

court retains jurisdiction to proceed to adjudication under Article 42.12,

Section 5(h) of the Texas Code of Criminal Procedure.

Ex parte Moss, 2014 WL 1512955, at *1.

Before Article 42.12, Section 5(h), was added to the Texas Code of Criminal

Procedure, this Court held that for a trial court to have jurisdiction to adjudicate the guilt

of a defendant who was on community supervision, “both the motion to revoke and capias

for arrest must be issued prior to the termination of the probationary period.” 2 Guillot v.

State, 543 S.W.2d 650, 652 (Tex. Crim. App. 1976); see also Prior v. State, 795 S.W.2d

179, 184 (Tex. Crim. App. 1990) (noting that this Court will interpret similar regular

community-supervision statutes and deferred-adjudication community-supervision

statutes similarly); Rodriguez v. State, 804 S.W.2d 516, 517 n.1 (Tex. Crim. App. 1991)

(per curiam).

In 2003, the 78th Legislature codified this Court’s holdings with respect to when a

trial court retains jurisdiction to adjudicate a defendant on deferred-adjudication guilty

beyond the expiration of that defendant’s period of supervision in Article 42.12, Section

2

This Court had also held that the State had to exercise due diligence in executing the

issued capias. See Prior v. State, 795 S.W.2d 179, 184 (Tex. Crim. App. 1990). Later, we

disavowed the holding that the due-diligence requirement was jurisdictional and, instead,

explained that it was a plea in bar or defense that must be raised by the defendant at the

revocation hearing. See Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). The

“due diligence” defense was later codified by the Legislature in Article 42.12, Section 24 as an

affirmative defense. See TEX . CODE CRIM . PROC. art. 42.12, § 24. The statutory “due diligence”

defense is available to a defendant in a hearing to revoke community supervision for “regular”

community supervision (Section 21(b-2)) or deferred-adjudication community supervision

(Section 5(b)). Id.

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5(h). Acts of May 31, 2003, 78th Leg., R.S. ch. 250, § 1, 2003 Tex. Gen. Laws 1158,

1158. Article 42.12, Section 5(h) states that,

A court retains jurisdiction to hold a hearing under Subsection (b) and to

proceed with an adjudication of guilt, regardless of whether the period of

community supervision imposed on the defendant has expired, if before the

expiration the attorney representing the state files a motion to proceed with

the adjudication and a capias is issued for the arrest of the defendant.

T EX. C ODE C RIM. P ROC. art. 42.12, § 5(h). Thus, the requirement that the capias be issued

before the expiration of the supervision period was carried over into the statute. See

Garcia v. State, 387 S.W.3d 20, 23 (Tex. Crim. App. 2012). Likewise, the Legislature

also included in the same statutory provision the requirement that the motion to adjudicate

be filed before the expiration of the defendant’s community-supervision period. Id.

Because the Legislature codified this Court’s judicially-fashioned jurisdictional rule with

respect to community supervision, we find our interpretations of those requirements

before the adoption of Article 42.12, Section 5(h), to be instructive on the jurisdictional

questions presented in this case.3

With respect to the timely issuance of the capias, we held in Langston that “a trial

court loses jurisdiction to proceed to adjudicate a defendant’s guilt when the district clerk

3

In Awadelkariem v. State, 974 S.W.2d 721, 725–26 (Tex. Crim. App. 1998), we stated

that “[w]e presume the Legislature intends the same construction to continue to apply to a statute

when the Legislature meets without overturning that construction. That maxim applies whether

the construction at issue is a judicial decision or a judicially-promulgated rule.” Id. (internal

citation omitted); see Garcia, 387 S.W.3d at 22 (concluding that the 78th Legislature statutory

additions to Article 42.12 effectively codified the filing-of-the-motion and issuance-of-the-capias

requirements while leaving out the common-law due-diligence defense).

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fails to issue a capias before his probationary period expires.” Sledge, 391 S.W.3d at 106

(citing Langston, 800 S.W.2d at 554); cf. Coffey v. State, 500 S.W.2d 515, 516 (Tex.

Crim. App. 1973) (rejecting the State’s argument that the timely issuance of a capias

tolled the term of community supervision such that the later filing of the motion to

adjudicate was timely and concluding that the judgment revoking the appellant’s

community supervision was void). However, we overruled the appellant’s claim that the

trial court lacked jurisdiction to adjudicate him guilty because, although his period of

community supervision had already expired, the motion to revoke probation was filed and

the capias was issued before the expiration of that period. Langston, 800 S.W.2d at 554.

We have reached the same conclusion in a number of other cases, and in each case we

have emphasized that the filing of the motion to adjudicate and the issuance of the capias

are the relevant triggering events under the statute.4

Based on our voluminous and uninterrupted caselaw on this topic, and the

Legislature’s codification of our judicially-fashioned rule without modification,5 we will

continue to interpret Article 42.12, Section 5(h), as we applied it before the statutory

4

See, e.g., Whitson v. State, 429 S.W.3d 632, 636 (Tex. Crim. App. 2014); Ex parte

Donaldson, 86 S.W.3d 231, 232 (Tex. Crim. App. 2002) (per curiam); Peacock v. State, 77

S.W.3d 285, 287–88 (Tex. Crim. App. 2002); Prior, 795 S.W.2d at 183 (citing Lovell v. State, 74

S.E.2d 570, 572 (S.C. 1953)); Coleman v. State, 632 S.W.2d 616, 617–18 (Tex. Crim. App.

[Panel Op.] 1982); Shahan v. State, 792 S.W.2d 101, 102–03 (Tex. Crim. App. 1990);

Rodriguez, 804 S.W.2d at 517–18; Coffey, 500 S.W.2d at 515–16.

5

See Garcia, 387 S.W.3d at 23 (noting that the Legislature codified this Court’s rule

regarding the jurisdiction of a trial court to revoke a probationer’s community supervision after

the period of supervision expires).

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provision was adopted by the Legislature. Thus, the relevant time period with respect to

the capias requirement remains the time at which the capias is actually issued. We also

note that this conclusion comports with the applicable definition of capias in Chapter 23

of the Texas Code of Criminal Procedure, which defines a capias as a writ that is “issued

by a judge of the court having jurisdiction of a case after commitment or bail and before

trial, or by a clerk at the direction of the judge.”6 T EX. C ODE C RIM. P ROC. art. 23.01. This

result is also consistent with various provisions throughout the Code of Criminal

Procedure referencing a clerk issuing a capias.7

A PPLICATION

In this case, an order directing the district clerk to issue a capias was attached to

the motion to adjudicate that the judge signed and dated.

To the Clerk of Said Court:

You are hereby directed to issue a capias, with a copy of this Petition

for Revocation of Community Supervision Sentence and Final Adjudication

of Guilt attached thereto, for the arrest of Jecia Javette Moss, to answer the

6

Although the word capias is also defined in Chapter 43 of the Code of Criminal

Procedure, that definition is not applicable in this case because that definition pertains only to

enforcing judgments. See TEX . CODE CRIM . PROC. art. 43.015 (defining capias and capias pro

fine as they are used in Chapter 43). However, the definition of capias from Article 23.01(a) is

proper because the capias in question was issued “by a clerk at the direction of the judge,” and it

was issued to force Applicant to appear in court for a “trial” in the form of a revocation hearing.

See TEX . CODE CRIM . PROC. art. 23.01. The judgment revoking Applicant’s community

supervision was not entered until April 5, 2006, and the capias that issued for her arrest to

enforce that judgment of conviction when she failed to turn herself in is governed by Article

43.015(1) defining a capias for purposes of executing a judgment.

7

See, e.g., TEX . CODE CRIM . PROC. arts. 2.195, 17.16(c), 23.03(a), 23.031, 23.05(d).

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charges of community supervision violation and that upon his (sic) arrest

[s]he shall be held without bond pending the hearing thereof.

The order was signed by the trial judge on October 3, 2005. Also contained in the writ

record is the capias that was issued by the clerk and is styled, “MTR WARRANT.” It is

directed to any peace officer of the State of Texas to arrest Applicant for

“AGGRAVATED ASSAULT (Probation Revocation).” This capias is dated October 6,

2005. Applicant’s community supervision expired on October 3, 2005.

We hold that, because the capias in this case was issued after the expiration of

Applicant’s period of supervision, the trial court did not retain jurisdiction to proceed to

adjudicate Applicant guilty and sentence her. In addition, because the trial court lacked

jurisdiction to proceed to adjudication, Applicant’s sentence was discharged. Therefore,

we grant Applicant relief.8 The judgment of conviction in Cause No. 20203 in the 86th

District Court is vacated.

Copies of this opinion shall be sent to the Texas Department of Criminal

Justice—Correctional Institutions Division and Pardons and Paroles Division.

Hervey, J.

Delivered: November 5, 2014

Publish

8

Because we conclude that the capias did not timely issue, we need not reach the question

of whether the motion to adjudicate was timely filed.