EX PARTE FENNELL v. << (2025)

OPINION

Applicant was convicted in two cases of capital murder and sentenced to two terms of imprisonment of life without parole. The Fourth Court of Appeals dismissed his direct appeals for want of jurisdiction. Fennell v. State, Nos. 04-10-00878-CR & 04-10-00879-CR (Tex. App.–San Antonio Jan. 19, 2011). Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contends, inter alia, that the trial court lacked jurisdiction in cause number 2010CR9672W because no indictment was filed. Based on the record, the habeas court has determined that the trial court lacked jurisdiction in that case and so relief should be granted. We agree that the conviction in cause number 2010CR9672W should be vacated. See Teal v. State, 230 S.W.3d 172, 174-75 (Tex. Crim. App. 2007).

In addition, we vacate the punishment in cause number 2008CR3179A-W1. A jury found Applicant guilty of capital murder in that case before the plea bargain was entered. Therefore, the conviction in that case was unaffected by the plea bargain. However, Applicant's sentence of life without parole was a term of the plea agreement. See Ex parte Cox, 482 S.W.3d 112, 118-19 (Tex. Crim. App. 2016).

Relief is granted. Brady v. United States, 397 U.S. 742 (1970). The judgment in cause number 2010CR9672W, and the sentence in cause number 2008CR3179A, in the 227th District Court of Bexar County, are set aside.¹ Applicant is remanded to the custody of the Sheriff of Bexar County to answer the charges. The trial court shall issue any necessary bench warrant within ten days from the date of this Court's mandate.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and the Board of Pardons and Paroles.

DISSENTING OPINION

A jury found Applicant guilty of capital murder, and he sought to negotiate with the State to avoid the death penalty. The State agreed, if Applicant would also plead guilty to a second capital murder charge for two concurrent life-without-parole sentences. Applicant agreed, waived indictment on the second charge, and waived appeal. On habeas, Applicant claims that counsel led him to believe he could still appeal. He also claims that the trial court lacked jurisdiction over the second capital-murder charge because an indictment for such a charge cannot be waived. For both claims, Applicant expressly requests that any remedy be limited to obtaining an out-of-time appeal, at which he could advance the jurisdictional claim and other claims. He wants to limit his remedy to reserve the possibility of a raising substantive challenges to the trial court's judgment in a later habeas application. We should take Applicant at his word and address only whether he is entitled to an out-of-time appeal, and since he is not, deny relief. Alternatively, because any jurisdictional problem relates only to personal jurisdiction, rather than subject-matter jurisdiction, Applicant should be estopped from challenging his waiver of indictment under the doctrine of estoppel by judgment. We should not, as the Court does, place both Applicant and the State in a worse position by granting relief Applicant does not request.

I. BACKGROUND

A. Trial

Applicant was indicted for capital murder. The State offered to let him plead guilty in exchange for a life sentence. Applicant rejected the offer, the case went to trial, and the jury found him guilty. Applicant then asked Attorney Hancock if the deal for a life sentence was still open. Hancock contacted the prosecutor, and the prosecutor agreed that a deal could be made. The State had expected to introduce evidence at punishment of another capital murder, which had not been indicted. The prosecutor was willing to agree to life-without-parole sentences in both cases if Applicant would plead guilty to both offenses. Applicant agreed to do so. As part of this agreement, he executed a written waiver of his right to an indictment for the unindicted capital murder, and the prosecutor signed an information.¹ The waiver of the indictment also included a waiver of the right to ten days to prepare and the right to two days before arraignment.²

Also, Applicant waived his right to appeal. He had been told numerous times in the plea discussions that he would not be able to appeal a plea of guilty or no contest. Attorney Wheat talked about the plea agreement to make sure Applicant knew what a plea would mean for him. He went through the paperwork extensively to make sure Applicant had no questions. Applicant signed a waiver of appeal in two different places in the paperwork on each case, and the judge verbally warned him on each case that he would not be able to appeal.³

B. Appeal

Appellant's attorneys did not file notices of appeal, but Applicant did, although he filed them late, and the appeals were dismissed as untimely.⁴

C. Habeas Application

Applicant filed a habeas application in each case. For the indicted capital murder, he filed a single ground for relief: that counsel was ineffective. Applicant claimed that he was innocent of the murder but was told by counsel to take the deal because counsel was “setting him up for a good appeal.” Applicant claimed he did not knowingly waive his right to appeal. He also claimed that the plea agreement was “unenforceable” because he was never indicted on the second capital-murder charge and so the court “never acquired subject matter jurisdiction.” And he faulted counsel for not filing an appeal. Applicant further said, “This application is a request for an out of time appeal only, and is not to be construed as a challenge to the conviction prohibiting a successive application should the need arise.”

Applicant's habeas application for the unindicted capital murder contained two grounds. His first ground was much like his sole ground in the indicted case. In addition to rehashing some of the factual claims in that ground, he also alleged that, after the jury's guilty verdict, he was “distraught and overwhelmed.” He said that he was “completely unaware that he was waiving his right to appeal” and “also completely unaware that he had never been indicted in the current case, and that this right could not be waived.” He ended his factual allegations with a disclaimer similar to the ground in his other application: that he was requesting only an out-of-time appeal and wanted to be able to file a successive application if the need should arise.

In his second ground, Applicant alleged that he “was convicted in a court that lacked jurisdiction because he was never indicted by a grand jury for the capital murder charge for which he was convicted.” However, in the supporting facts section on the application form under that ground, he spent most of his time talking about counsel allegedly setting him up for a good appeal and then not following through by filing an appeal. In his supporting memorandum, he also claimed, similar to allegations in his first ground, that he “did not know that he had not been indicted by a grand jury, and that the trial court lacked the ability to prosecute him.”

As with his first ground, the application-form allegations under his second ground ended with a disclaimer limiting the relief requested to an out-of-time appeal, saying:

Once again, this writ of habeas corpus is seeking an out of time appeal and is not a challenge to the conviction which would bar a successive petition in which Applicant would actually challenge the conviction itself. Should this Court reject Applicant's request for an out of time appeal, Applicant would then file an application for writ of habeas corpus in which the conviction would be challenged.

In his supporting memorandum for his second ground, Applicant also asked the Court to strike his ground if it were deemed to be a challenge to the conviction:

Should the Court deem Ground Two as a challenge to the conviction, Applicant asks the Court to strike ground two, so as not to invoke an initial writ, which would allow for a Section 4 Bar to a subsequent application challenging the conviction.

D. Habeas Court's Findings

The habeas court found Applicant's trial attorneys to be “truthful and credible” and recited facts consistent with their affidavits (and from which the facts recited in the “Trial” section of this opinion are drawn). The habeas court found no errors in the defense attorneys’ handling of the case or “in the advice given to Applicant.” In addition, the court found that Applicant was properly admonished by the trial court. The habeas court concluded that his sole ground for relief in the indicted case and his first ground for relief in the unindicted case should be denied. But, the habeas court concluded that, because an indictment cannot be waived for a capital felony, Applicant's second ground for relief in the unindicted case should be granted.

II. ANALYSIS

A. Applicant expressly limited his request for relief to an out-of-time appeal. We should take him at his word.

The subsequent-application provision of the post-conviction felony habeas statute, Article 11.07, § 4, says, “If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless” an exception applies.⁵ This Court has construed the phrase “challenging the ․ conviction” to mean that the § 4 bar to subsequent applications is triggered only when there has been a prior application that challenged the trial court's judgment of guilt or assessment of punishment.⁶ This Court has further held that a request for an out-of-time appeal does not constitute such a “challenge.”⁷ So, if a habeas applicant's first habeas application seeks only an out-of-time appeal, the § 4 bar is not yet triggered, and the applicant retains the ability to file a later application without having to meet an exception to the bar.

With Applicant already advancing a claim that his attorneys deprived him of an appeal, he might have thought that his jurisdictional claim could also support such relief. In expressly limiting his request for relief to out-of-time appeals, Applicant seeks to take advantage of this caselaw. He cannot be faulted for relying upon this Court's pronouncements. Perhaps he wishes to quickly obtain an out-of-time appeal without having to go through the trouble of determining all of the substantive claims he would need to raise in a conviction-challenging application. I am aware of no published caselaw that prevents a habeas applicant from limiting his claims in such a manner. If we ignore such a habeas applicant's express limitation and deny relief on what we perceive to be “challenges to the conviction,” then we risk frustrating his legitimate reliance on our cases—possibly causing an applicant to lose claims he would have otherwise raised.

And we also risk making it more difficult to determine whether a claim is barred under § 4. If we deny an application like Applicant's without written order, there might be no objective basis for determining whether it was denied for “out-of-time appeal” reasons or for “conviction-challenging” reasons. In Ex parte Torres, we made a point of standardizing what “dismissals” and “denials” mean to make our job of determining when § 4 is implicated easier.⁸ But under our “challenging the conviction” jurisprudence, some “denials” do not trigger § 4, and now we make it harder to determine when that is the case.

The Court may think it renders these potential problems moot by granting relief, but granting relief in a form other than an out-of-time appeal raises other problems. If a court has an asymmetrical rule that allows it to “look through” an “out-of-time appeal” claim to grant relief but not to deny relief, then applicants can “have their cake and eat it too.” An applicant could file a risk-less “out-of-time appeal” claim as a stalking horse for a direct claim for relief from the trial court's judgment knowing it would not be held against him if denied. Instead, we should simply treat any claim expressly designated as only an “out-of-time appeal” claim as in fact being only such a claim.

Moreover, a “look through” grant of relief of this sort still risks the loss of legitimate claims. Unless the Court dismisses a prosecution with prejudice, there is always the possibility that a claim could have been raised that would confer greater relief than the Court reads into the “out-of-time appeal” claim. For Applicant, that would be true if he could raise a claim that would entitle him to a reversal of the conviction in the indicted capital murder case instead of simply a new punishment hearing. Even if one thinks that an applicant could eventually raise a greater-relief claim after, for example, a new punishment hearing, the delay in being able to raise the claim could make evaluating such a claim more difficult, which could prejudice either or both parties. Assuming the “out-of-time appeal” claim is meritless, once the Court denies it, the habeas applicant has the ability to raise all of his substantive claims as soon as he can formulate them.

Also, the Court's grant of relief here actually places Applicant in danger of receiving the death penalty with no real upside. His conviction in the indicted case remains intact. The Court overturns his sentence, but that life-without-parole sentence was the minimum sentence available for capital murder, so his sentence can only get worse. The Court vacates his conviction in the unindicted case, but the sentence in that case ran concurrently anyway, so he receives no practical benefit from that form of relief. So, before the Court's grant of relief, Applicant was going to have to serve life without parole in prison. After the Court's grant of relief, he will still at least have to do that, but he might get the death penalty instead. If Applicant had actually requested relief from the trial court's judgment, we could do that. But Applicant sought only an out-of-time appeal, a form of relief that at least had the potential to better his position from a practical standpoint. Instead, the Court worsens Applicant's position from a practical standpoint by granting relief Applicant did not ask for, and in fact, expressly requested the Court not to give (going so far as to ask the Court to strike his claim if construed as requesting different relief). Instead of doing that, we should simply decide whether Applicant is entitled to the relief he actually requested. If he is not, then we should deny relief.

B. Applicant is not entitled to an out-of-time appeal.

The habeas court believed the trial attorneys and concluded that they handled Applicant's case competently. The habeas court also found that Applicant was properly admonished under Article 26.13. Ultimately, the habeas court recommended rejecting Applicant's claim that his attorneys misled him into believing that he could appeal. All of these findings support a conclusion that Applicant is not entitled to an out-of-time appeal. The Court today does not grant an out-of-time appeal and so at least implicitly concludes that such relief is without merit.⁹

The only question is whether Applicant's ignorance of the statutory prohibition against waiving an indictment in his type of case renders his waiver of appeal involuntary or invalid. It does not. A waiver of appeal is knowing and voluntary, and therefore valid, if the defendant is “in a position to know the nature of the claims he could have brought on appeal but for his waiver.”¹⁰ A defendant is in this “position to know” if, and to the extent that, “he is aware of what has occurred in the trial proceedings.”¹¹ In the context of evaluating the voluntariness of a habeas waiver, which is more difficult to show than for a waiver of appeal, claims that a defendant “could have anticipated at the time of his waiver” are those “based upon purported defects that are known (or that could have been known with due diligence and the assistance of counsel).”¹²

Article 1.141 allows a waiver of indictment, and the filing of an information, for all felonies except capital felonies:

A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information.13

The waiver of indictment that Applicant signed showed that he knew he was pleading to a second capital-murder offense, knew that an indictment had not been returned for that offense, and knew that the State would be relying upon an information. He therefore had knowledge of all the relevant facts on which to base an invalid-waiver-of-indictment claim on appeal. This claim is one that could have been discovered on the basis of due diligence at the time the waiver of appeal was executed.

Moreover, even when a defendant is ignorant of facts on which to base a claim of appeal, a waiver is still valid if supported by consideration from the State.¹⁴ Such consideration could include agreeing to a particular punishment, waiving its statutory right to a jury trial,¹⁵ or abandoning an enhancement.¹⁶ Here, the State agreed to the minimum sentence for capital murder in both cases, waiving its right to pursue the death penalty from a jury. The State gave plenty of consideration for the appeal waiver here.

Consequently, Applicant's waiver of appeal was valid. And because that waiver was valid, he was not entitled to an out-of-time appeal.

C. If we get to the issue, we should hold that Applicant is estopped from challenging the judgments.

My position is that we should not address whether the absence of an indictment in one of the capital-murder cases requires the capital-murder judgments to be set aside. But since the Court insists on addressing that question, I must express my disagreement with its resolution.

Estoppel is a flexible doctrine that can bar nearly any kind of complaint, even a complaint that is not otherwise waivable.¹⁷ Only a challenge to subject-matter jurisdiction is categorically immune from estoppel.¹⁸ While other types of jurisdictional challenges can be defeated by estoppel, it is true that “demonstrating estoppel to challenge some other type of jurisdiction would seem to be an onerous task.”¹⁹

The absence of an indictment when one is required deprives a court of jurisdiction.²⁰ The jurisdiction at issue, though, is not subject-matter jurisdiction, but personal jurisdiction.²¹ So estoppel could bar the type of jurisdictional complaint at issue here, though the equities would have to strongly favor such an outcome. They do.

The doctrines of estoppel by judgment and estoppel by contract are both implicated when the parties enter into a plea agreement,²² as occurred here. This case also comes very close to “invited error” estoppel because Applicant actively sought to obtain a deal that would give him a life sentence, even though, because the jury had already found him guilty, he had little to offer in exchange.²³ The jury verdict meant that he was already facing a minimum punishment of life without parole, and there was a trial in progress to determine whether he should receive the death penalty. And one of Applicant's trial attorneys testified via affidavit that a death sentence from the jury was likely.

To accomplish a deal that was meaningful for the State, Applicant changed his plea to guilty in the case on trial, pled guilty to another capital murder that would have been shown by the evidence at the punishment stage, and waived his right to appeal. In exchange, the State agreed to the minimum punishment allowed in that situation—two concurrent life sentences. In doing so, the State gave up its opportunity to complete its death-penalty trial before the jury, as well as any possibility of a death sentence for the other crime.

To undo the judgments now would significantly prejudice the State. To obtain the death penalty in a punishment retrial, the State would have to go through Texas's onerous individual voir-dire procedure for capital cases ²⁴ and would have to present all of its evidence again, since it would all be relevant to punishment.²⁵ While that would be true any time a death penalty case is reversed, Applicant's case is not currently a death penalty case, and the State gave up an easy path to having a death-penalty hearing during the then-ongoing trial. And since the State thought the case was final, with appeal itself being waived, gathering the witnesses and marshaling the evidence might be a more onerous task. It should not be underemphasized that the State's reliance interests are heavy due to its early termination of the pending trial.

Weighed against the State's heavy reliance interests is the relatively technical nature of the jurisdictional violation at issue. A grand jury indictment is unwaivable in a capital case only because statute says so. A similar unwaivable statutory requirement—the unwaivable requirement of a jury trial in capital cases—has been held to not even be cognizable on post-conviction habeas.²⁶ So if a jury were waived in violation of statute, this Court would not even reach the complaint, but the Court wants to undo one proceeding and partially undo another on the basis of the grand jury being waived in violation of statute. Perhaps part of the motivation of the Court in refusing to entertain the jury-waiver complaint is that, at the time the complaint was before us, the statute prohibited a jury waiver in a “capital” case, even when the State was not seeking the death penalty.²⁷ That statute has since been changed to apply only to death penalty cases.²⁸ But the current situation is like the pre-amended jury-waiver statute—it applies to a capital murder prosecution, regardless of whether the death penalty is in play. There are other offenses for which life without parole is a possibility and for which waiver of an indictment is statutorily permitted.²⁹

Given the rather technical nature of the jurisdictional violation and the State's heavy reliance interests, I would hold—if I were to reach the issue—that Applicant is estopped from challenging his convictions on the basis of an invalid indictment-waiver.

I respectfully dissent.

FOOTNOTES

1.   Any relief not specifically granted in this opinion is denied.

1.   The written waiver expressly consented to the defendant being charged by information.

2.   See Tex. Code Crim. Proc. arts. 1.051(e), 26.03.

3.   Attorney Wheat would later tell a member of Applicant's family that Applicant's decision “saved his life,” and in an affidavit Wheat said, “I believe Mr. Fennell knew the jury was likely to give the death penalty.”

4.   Fennell v. State, Nos. 04-10-00878-CR & 04-10-00879-CR (Tex. App.–San Antonio Jan. 19, 2011) (not designated for publication).

5.   Tex. Code Crim. Proc. art. 11.07, § 4(a) (emphasis added).

6.   Ex parte Evans, 964 S.W.2d 643, 647 (Tex. Crim. App. 1998).

7.   Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000).

8.   See 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).

9.   The Court notes that any relief not explicitly granted is denied.

10.   Ex parte Reedy, 282 S.W.3d 492, 498 (Tex. Crim. App. 2009).

11.   Id.

12.   Id.

13.   Tex. Code Crim. Proc. art. 1.141.

14.   Jones v. State, 488 S.W.3d 801, 804-05 (Tex. Crim. App. 2016).

15.   Carson v. State, 559 S.W.3d 489, 494 (Tex. Crim. App. 2018).

16.   Jones, 488 S.W.3d at 804.

17.   Deen v. State, 509 S.W.3d 345, 348 n.6 (Tex. Crim. App. 2017) (“Absolute statutory requirements that are not waivable or forfeitable under Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), may nevertheless be subject to estoppel.”); Gutierrez v. State, 380 S.W.3d 167, 177 (Tex. Crim. App. 2012) (“[U]nder some circumstances, the doctrine of estoppel can trump even Marin’s category of non-forfeitable/non-waiveable absolute requirements or prohibitions.”)

18.   Ex parte Macias, 541 S.W.3d 782, 786 n.23 (Tex. Crim. App. 2017) (“[O]nly subject matter jurisdiction is categorically immune from estoppel.”); Gutierrez, supra (“These types of estoppel, we observed, would apply to nullify any kind of systemic breakdown except for a lack of subject matter jurisdiction.”); Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007) (“The only exception to this principle is for challenges to the subject-matter jurisdiction of the court rendering the judgment.”).

19.   Macias, supra.

20.   Teal v. State, 230 S.W.3d 172, 174 (Tex. Crim. App. 2007) (“The Texas Constitution requires that, unless waived by the defendant, the State must obtain a grand jury indictment in a felony case. Absent an indictment or valid waiver, a district court does not have jurisdiction over that case.”) (citing Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995)). But an information can suffice for the purpose of tolling limitations, at least so long as an indictment could be waived in the case. Ex parte Ulloa, 514 S.W.3d 756, 759-60 (Tex. Crim. App. 2017).

21.   Ulloa, supra at 759 (“Although a court must still have jurisdiction over the type of offense (i.e. subject matter jurisdiction) to be a court of competent jurisdiction, Article V, § 12 confers jurisdiction over a person upon the filing of an indictment or information.”); Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (setting out as separate categories the “lack of subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law” and the “the document purporting to be a charging instrument (i.e. indictment, information, or complaint) ․ not satisfy[ing] the constitutional requisites of a charging instrument, [so that] the trial court has no jurisdiction over the defendant.”) (ellipsis and bracket material added).

22.   Rhodes, 240 S.W.3d at 891.

23.   See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (describing the conduct of affirmatively leading the trial court into error).

24.   See Tex. Code Crim. Proc. art. 35.17.

25.   See id. art. 37.071, § 2(d) (jury must be instructed that “it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage”).

26.   See Ex parte Douthit, 232 S.W.3d 69 (Tex. Crim. App. 2007).

27.   See id. at 70-71.

28.   See Tex. Code Crim. Proc. art. 1.13(a).

29.   See Tex. Gov't Code § 508.145(a).

Per curiam.

Parker, J., filed a dissenting opinion in which Keel, J., joined. Richardson and Yeary, JJ., did not participate.