Opinion
05-22-01002-CR
06-09-2023
EX PARTE JEREMY MICHAEL LIEBBE
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the County Court at Law No. 2 Kaufman County, Texas Trial Court Cause No. 19-90392-CC2-M
Before Justices Reichek, Nowell, and Garcia
MEMORANDUM OPINION
ERIN A. NOWELL, JUSTICE
The State charged Jeremy Michael Liebbe with multiple criminal offenses, including impersonating a public servant and criminal trespass with a firearm. Appellant pleaded guilty to criminal trespass, and the trial court entered an order of deferred adjudication. The court ordered the other charged offenses dismissed without prejudice. Eventually, the trial court signed an order of dismissal and entered a separate order discharging appellant from community supervision. Appellant then filed several motions to recover personal property and destroy digital property; appellant was unsuccessful on these motions.
In addition to issuing this opinion today, we also issue an opinion in Liebbe v. State, No. 05-22-00530-CV in which we address appellant's complaints related to these motions.
Appellant subsequently filed a "Motion for Post-Judgment Relief," which the trial court treated as an application for writ of habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure. In addition to entering findings of fact and conclusions of law, the trial court denied appellant's motion for postjudgment relief. The trial court's order on appellant's motion for post-judgment relief is the subject of this proceeding. Appellant raises five arguments: (1) the trial court erred by determining a provision of his community supervision was permanent; (2) appellant could not permanently relinquish constitutional rights without showing an express, knowing, and intelligent waiver of rights; (3) the State committed fraud by nondisclosure by failing to disclose to appellant that one of the terms of community supervision was intended to be permanent; (4) the trial court erred by finding the documents identifying appellant as an honorably retired police officer were fraudulent; and (5) the trial court erred by treating appellant's motion for post-judgment relief as an application for writ of habeas corpus. We dismiss the proceeding for lack of jurisdiction.
FACTUAL BACKGROUND
Appellant was charged with several criminal offenses after an encounter with another resident in Forney, Texas. The facts underlying that encounter are not relevant to this appeal, and we do not recite them here. See TEX. R. APP. P. 47.1. During the pendency of the criminal investigation, the police obtained thirteen search warrants and seized property from appellant. Appellant has repeatedly sought return of the property seized from him; the State argues, among other things, appellant agreed to relinquish the items as part of his plea agreement.
On February 20, 2020, appellant, his attorney, the State's attorney, and the judge signed a plea agreement in which appellant agreed to plead guilty to criminal trespass with a deadly weapon; the terms of the agreed sentence were deferred community supervision for two years and a fine of $500. The plea agreement states appellant relinquished his right to appeal and right to file a post-conviction writ "on any claims based on facts known or that could have been anticipated with due diligence and the assistance of counsel at the time, or before, of my plea" if the trial court followed the terms of the State's recommendation as to sentencing.
The Order of Deferred Adjudication, entered on February 20, 2020, reflects appellant, who was represented by counsel, entered a plea of guilty to criminal trespass with a deadly weapon. He was placed on community supervision for two years, ordered to pay a $500 fine, and ordered to complete 80 hours of community service. The bottom of the order states: "Furthermore, the following special findings or orders apply: See Exhibit B." Exhibit B states:
The words "Furthermore, the following special findings or orders apply" are typed and appear to be part of a pre-printed form. The words "See Exhibit B" are hand written.
Defendant shall give up all association with law enforcement. Cannot possess any law enforcement, or represent himself as retired law enforcement, insignia, including badges, ID's, etc. Defendant shall not be a part of any law enforcement associations or teach any law
enforcement classes. Defendant must write an apology letter to [the complainant]. Defendant cannon [sic] possess a firearm or a CHL.
All errors are in the original document.
Exhibit B also is signed by appellant, his counsel, the State's attorney, and the judge.
The Order Imposing Conditions of Community Supervision, which is dated February 20, 2020, states appellant was placed on community supervision for the offense of criminal trespass with a deadly weapon for a period of two years. The order states: "It is therefore ORDERED that the Defendant:" and then lists twenty-five actions, such as "[c]ommit no offense against the laws of Texas or of any other State or of the United States," pay the fine and court costs, and pay a monthly community supervision fee. The twenty-fifth item on the list is "Other conditions: See Exhibit B." Appellant, his attorney, and the presiding judge signed the document. The trial court also signed a certification of appellant's right to appeal on February 20, 2020; the certification states the case is a plea-bargain case, appellant waived the right of appeal, and "the defendant has NO right of appeal." The trial court's certification also is signed by appellant and his counsel.
The words "Other conditions" are typed and appear to be part of a pre-printed form. The words "See Exhibit B" are hand written.
Appellant subsequently filed his motion for post-judgment relief asking the trial court to issue a "post-judgment order for relief to require the State to comply with the terms of the deferred adjudication agreement." Specifically, appellant asked the State be ordered to return "any items, licenses, and/or badges, to restore all rights and privileges temporarily suspended, and to withdraw all other terms and requirements described in 'Exhibit B' attached to the Order of Deferred Adjudication and the Order Imposing Conditions of Community Supervision." (footnote omitted). Appellant's motion states he "has successfully completed his community supervision and this motion does not seek to challenge any of the terms that were imposed. Rather, Mr. Liebbe seeks an order requiring the State's compliance with the dismissal of his deferred adjudication and community supervision. However, to the extent necessary, Mr. Liebbe would request that the trial court construe this motion as a motion to amend the conditions of community supervision under Texas Code of Criminal Procedure article 11.072." (emphasis added).
The trial court held a hearing on appellant's motion for post-judgment relief, and appellant was represented by counsel at the hearing. The State filed a brief in response to appellant's motion after the hearing. The State attached an affidavit from Marc Moffitt, the attorney for the State who negotiated the plea, to the motion. Moffitt averred:
2. The plea agreement between Defendant and the State was that in return for:
• The State's dismissal of Defendant's indictment for impersonating a peace officer AND the State's agreement not to prosecute Defendant for tampering with evidence and child pornography,
• Defendant agreed that the terms of State's Exhibit B were permanent, not limited to the length of Defendant's deferred adjudication.
3. The Kaufman County District Attorney's Office has been in the practice of attaching an exhibit to a judgment and referring to it upon the second page of the Order of Deferred Adjudication, after the language "Furthermore, the following special findings or orders apply:", when intending a document to be a permanent part of a plea bargain, not limited to community supervision.
The State also attached a letter from the Van Zandt County Sheriff to its response, which states:
Mr. Liebbe served for less than eight months as an unpaid reserve officer at the Van Zandt County Sherriff's Office. He disputed his separation status from the SO and ultimately the department was required to issue him a retired peace officer card. We maintain a copy of that card in Mr. Liebbe's file here. The two cards represented in the photographs as those seized from Mr. Liebbe by the investigators in our county are not the cards issued by this department. They are fraudulent. They were not authorized by this department and the signature of former Sheriff Lindsay Ray on that card is not authorized. Because they are contraband, we are asking that they not be returned to Mr. Liebbe.
On August 29, 2022, the trial court made findings of fact:
1. This Court treats Defendant's Motion for Post-Judgment Relief as an 11.072 application for writ of habeas corpus;
2. Attorneys for the State understood Exhibit B to be permanent;
3. The plea agreement between the State and Defendant was that in return for the State's dismissal of Defendant's indictment for impersonating a peace officer and the State's agreement not to prosecute Defendant for tampering with evidence and child pornography, Defendant pled guilty to two years deferred adjudication for class A criminal trespass and agreed that the terms of Exhibit B were permanent;
4. It is the regular practice of the Kaufman County District Attorney's Office to attach an exhibit to a judgment and refer to it on the second page of the Order of Deferred Adjudication, when intending a document to be a permanent part of a plea bargain and not limited to the length of community supervision;
5. The affidavit of Mark Moffitt is credible;
6. The two documents identifying Defendant as an honorably retired peace officer from Van Zandt County are fraudulent;
7. The letter from Joe Carter, Van Zandt County Sheriff[,] is credible;
8. Extrinsic evidence demonstrates that Exhibit B was intended to be a permanent part of the plea bargain.
Based on its findings, the trial court concluded appellant was not entitled to recover a wallet star naming him an investigator with the Van Zandt County Sheriff's Office, documents identifying him as an honorably retired peace officer from Van Zandt County, a Texas License to Carry a Concealed Handgun, or a Texas Peace Officer License. It ordered appellant could recover a card labeled Americans with Disabilities Act - Service animal and a card labeled Texas Private Security Registration.
On February 6, 2023, the trial court entered its certification of the defendant's right of appeal, which states: "The defendant has the right to appeal the denial of his motion for post-judgment relief, which is treated as an 11.072 application for writ of habeas corpus."
LAW & ANALYSIS
We begin with appellant's fifth issue in which he argues the trial court erred by treating his motion for post-judgment relief as an application for writ of habeas corpus because an application for a writ of habeas corpus challenges the legal validity of the conditions of community supervision, which his motion for postjudgment relief did not do. Rather, appellant argues, his motion sought an order requiring the State to comply with the terms of the deferred adjudication agreement and the trial court's order of dismissal and discharge. The State responds that the only path for the trial court to retain jurisdiction over appellant's case was to treat his motion as an 11.072 writ of habeas corpus, and, the State also argues, this Court lacks jurisdiction over this proceeding.
On February 3, 2022, appellant filed a motion for dismissal and discharge requesting the trial court dismiss the proceedings and discharge him as provided for in Texas Code of Criminal Procedure article 42A.111(a). A few weeks later, the trial court granted the motion. The order states: "The Court hereby ORDERS that Mr. Liebbe be discharged from deferred adjudication and that Mr. Liebbe's plea be withdrawn and the verdict set aside. The Court FURTHER ORDERS that the accusation, complaint, information, or indictment be dismissed." Article 42A.111(a) states that on expiration of a period of deferred adjudication community supervision, if the judge has not proceeded to an adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him. See TEX. CODE CRIM. PROC. Art. 42A.111(a).
The entirety of appellant's fifth issue states:
Texas Code of Criminal Procedure Article 11.072, Section 2(b)(2), requires the application for habeas corpus to challenge the "legal validity of the conditions of community supervision". In the Defendant's Motion for Post-Judgment Relief, Appellant did not challenge the legal validity of the conditions of community supervision, rather Appellant requested the trial court to issue a post judgment order for relief to require the State to comply with the terms of the deferred adjudication agreement and the trial court's order of dismissal and discharge.
While arguing that article 11.072 does not apply, appellant does not cite any authority indicating how he believes the trial court should have treated a motion that he filed after the trial court discharged him from community supervision and dismissed the charges against him. Once appellant was discharged and the trial court proceedings were dismissed, the trial court did not retain jurisdiction to act upon his motion for post-judgment relief unless that motion was considered as a proceeding under article 11.072, which appellant requested the trial court to do. See State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002) (plurality opinion).
The State argues that even if the trial court correctly considered the motion under article 11.072, we do not have jurisdiction to consider this appeal. In his reply brief, appellant asserts we have jurisdiction under article 44.02 of the code of criminal procedure and Texas Rule of Appellate Procedure 25.2.
Jurisdiction must be vested in a court by constitution or statute. Burkley v. State, No. 05-21-00827-CR, 2023 WL 2568923, at *2 (Tex. App.-Dallas Mar. 20, 2023, no pet. h.) (mem. op.) (citing State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled in part on other grounds by State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002)). Stated another way, in criminal cases, the standard for determining jurisdiction is not whether the appeal is precluded by law, but whether the appeal is authorized by law. See id. (citing Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008)). Article V, § 6 of the Texas Constitution provides that a court of appeals shall "have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." TEX. CONST. art. V, § 6. Article 11.072 provides exclusive means by which district courts may exercise their original habeas jurisdiction in case involving an individual who is either serving a term of community supervision or who has completed a term of supervision. See Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008); Ex parte Glass, 203 S.W.3d 856, 857 (Tex. Crim. App. 2006) (article 11.072 provides the procedure by which "persons who are on community supervision or who have been on a community supervision that was never revoked may challenge the underlying conviction) (emphasis added).
In a plea-bargain case, a defendant may only appeal those matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal. See TEX. CODE CRIM. PROC. art. 44.02; TEX. R. APP. P. 25.2(a)(2). On February 20, 2020, the trial court signed a certification of appellant's right to appeal stating the case is a plea-bargain case, appellant waived the right of appeal, and "the defendant has NO right of appeal." Appellant and his counsel also signed the document. "[T]he statement in Applicant's certification form that he has no right of appeal reflects that Applicant had no right to appeal any issue in the case." Ex parte Castillo, No. WR-90,880-02, 2022 WL 6834494, at *2 (Tex. Crim. App. Oct. 12, 2022). However, the trial court subsequently entered a certification that appellant has a right to appeal "the denial of his motion for post-judgment relief, which is treated as an 11.072 application for writ of habeas corpus." Accordingly, because the trial court gave permission for appellant to appeal its denial of his motion, which the court treated as an 11.072 application for writ of habeas corpus, we will consider the motion as such.
Article 11.072 establishes the procedures for application for a writ of habeas corpus in a misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision. TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1. At the time the application for a writ of habeas corpus is filed, the applicant must be, or have been, on community supervision, and the application must challenge the legal validity of: (1) the conviction for which or order in which community supervision was imposed; or (2) the conditions of community supervision. TEX. CODE CRIM. PROC. ANN. art. 11.072, § 2. (b) "An applicant seeking to challenge a particular condition of community supervision but not the legality of the conviction for which or the order in which community supervision was imposed must first attempt to gain relief by filing a motion to amend the conditions of community supervision." TEX. CODE CRIM. PRO. ANN. art. 11.072 § 3(b). "An applicant may challenge a condition of community supervision under this article only on constitutional grounds." TEX. CODE CRIM. PRO. ANN. art. 11.072 § 3(c).
Appellant's motion does not challenge the legal validity of the conviction for which or order in which community supervision was imposed or the legal validity of the conditions of community supervision. In so far as appellant may believe he is challenging a particular condition of community supervision, appellant did not attempt to gain relief by filing a motion to amend the conditions of community supervision; appellant's motion for post-judgment relief does not seek to amend the conditions of community supervision. Finally, appellant did not challenge any condition of his community supervision on constitutional grounds. Rather, appellant's motion argues that a valid condition of community supervision should not apply to him after the term of his community supervision ended. Appellant's motion specifically concedes it "does not seek to challenge any of the terms that were imposed." (emphasis added). Accordingly, appellant's motion also cannot be considered for an application for a writ of habeas corpus pursuant to article 11.072.
We conclude appellant's motion does not meet the requirements for an application for a writ of habeas corpus in a misdemeanor case as defined in article 11.072 of the code of criminal procedure. Having found no other jurisdictional authorization for this Court to consider appellant's complaints, we conclude we lack jurisdiction to do so.
CONCLUSION
We dismiss for want of jurisdiction.
JUDGMENT
Based on the Court's opinion of this date, the appeal is DISMISSED for lack of jurisdiction.
Judgment entered this 9th day of June, 2023.