Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-307 CR
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JAMES DEWAYNE CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Cause No. 89488
James Dewayne Carter pled guilty to engaging in organized criminal activity. Tex.
Pen. Code Ann. § 71.02 (Vernon Supp. 2005). (1)
Carter violated the terms of his deferred
adjudication, and the trial court sentenced him to ten years in prison. See Tex. Pen. Code
Ann. § 12.34 (Vernon 2003). On appeal, Carter complains that his sentence should have
been a maximum of two years in prison under section 71.02(c) of the Penal Code. Tex. Pen.
Code Ann. § 71.02 (Vernon Supp. 2005). Carter asserts that the indictment to which he pled
guilty was for engaging in organized criminal activity by conspiring to commit forgery, a
state jail felony. (2)
We hold that Carter's indictment alleges a violation of the statute for organized
criminal activity and alleges that Carter both conspired to commit, and committed, forgery.
When a person both conspires and commits the criminal act, the statute increases the penalty
for the offense by one level. Tex. Pen. Code Ann. § 71.02(b) (Vernon Supp. 2005).
Because Carter pled guilty to both conspiring to commit and to committing forgery, the
statute enhances the applicable punishment to that of a third degree felony. Id. Therefore,
the trial court committed no error in sentencing Carter to ten years in prison. Tex. Pen.
Code Ann. § 12.34. BACKGROUND The grand jury indicted James Dewayne Carter for engaging in organized criminal
activity. See Tex. Pen. Code Ann. § 71.02 (Vernon Supp. 2005). The indictment, in
pertinent part, states that Carter: . . . did then and there with the intent to establish, maintain, and
participate in a combination and in the profits of a combination,
collaborate in carrying on criminal activities by conspiring to commit
the offense of forgery, and the Defendant did then and there agree with
STEPHANIE BROOK BEAUMONT and CHARLOTTE JEAN
BARTHELL that they would engage in conduct that would constitute
said offense, and JAMES DEWAYNE CARTER did perform an overt
act in pursuance of the agreement, by forging a credit account receipt,
AGAINST THE PEACE AND DIGNITY OF THE STATE. Section 71.02 penalizes both persons who conspire to commit certain crimes, and those
persons that conspire and commit certain crimes. See Tex. Pen. Code Ann. § 71.02 (a)
(Vernon Supp. 2005). (3) The statute provides that the punishment for conspiracy to commit
forgery is the same as that for forgery. See Tex. Pen. Code Ann. § 71.02 (c) (Vernon Supp.
2005). However, when a defendant commits the underlying crime, in this case forgery, in
combination with two or more other persons, the defendant's punishment is one category
higher than the punishment for the underlying offense. See Tex. Pen. Code Ann. § 71.02
(b) (Vernon Supp. 2005). In this case, the section that raises the applicable penalty by one
level states: (b) Except as provided in Subsections (c) and (d), an offense under this section
is one category higher than the most serious offense listed in Subsection (a)
that was committed, and if the most serious offense is a Class A misdemeanor,
the offense is a state jail felony, except that if the most serious offense is a
felony of the first degree, the offense is a felony of the first degree. Id. In January 2004 Carter signed a written plea admonishment. The admonishment
contains language that informed Carter he was charged with a third degree felony. The
admonishment also advised Carter that the range of punishment was a term of not more than
ten years or less than two years in prison, and a fine not to exceed $10,000. The State made an agreed punishment recommendation for deferred adjudication.
Carter pled guilty. The pre-sentence investigation report likewise mentions that Carter
"committed the Third (3rd) Degree Felony offense of Engaging in Organized Criminal
Activity." In March 2004 the trial court entered a deferred adjudication order. In April 2005 Carter pled guilty to violating one term of his deferred adjudication.
In June 2005 the trial court revoked Carter's community supervision, found him guilty, and
sentenced him to ten years' confinement in the Institutional Division. In July 2005 Carter filed a notice of appeal. The trial court initially certified that this
was a plea-bargain case and that Carter had no right of appeal. After receiving the record,
and in light of the trial court's certification order, we abated the case for the trial court to
clarify its certification regarding Carter's right of appeal. We noted in our written order that
following adjudication, a defendant who plea bargains for deferred adjudication may appeal
only issues unrelated to the decision to adjudicate. Vidaurri v. State, 49 S.W.3d 880, 884-85
(Tex. Crim. App. 2001). The trial court then amended its certification to reflect Carter's limited right to appeal.
The amended certification states that "for issues limited to the procedure by which the
defendant was sentenced, this is not a plea bargain case and the defendant has a right of
appeal." We perceive Carter's appellate issue as claiming that the indictment did not permit
the trial court to sentence him to ten years in prison, an issue unrelated to the decision to
adjudicate. Therefore, we review Carter's complaint. Id.; Hargesheimer v. State, 182
S.W.3d 906 (Tex. Crim. App. 2006). DISCUSSION On appeal, and for the first time, Carter argues that the trial court had no jurisdiction
to sentence him to ten years for the offense alleged in the indictment. Carter contends that
the indictment alleges only a conspiracy to commit a forgery, which is punishable as a state
jail felony. With respect to Carter's argument that the trial court did not have jurisdiction, we
disagree. In general, a trial court has jurisdiction over a case when the indictment comes
from a grand jury, charges an offense, and is facially an indictment. Ex parte Gibson, 800
S.W.2d 548, 551 (Tex. Crim. App. 1990). Carter does not contend that the indictment fails
to charge him with some offense; rather, he acknowledges that the indictment charges him
with conspiring to engage in organized criminal activity. All the law requires to vest the trial
court with jurisdiction is that the indictment charge a person with an offense. Cook v. State,
902 S.W.2d 471, 480 (Tex. Crim. App. 1995). Since the indictment alleges Carter committed
an offense, the trial court had jurisdiction. Although Carter bases his complaint on jurisdiction, his issue also indicates his
intention to assert that the trial court had no authority to sentence him to a term that is longer
than the applicable statute allows. Tex. R. App. P. 38.1 (e). A sentence cannot exceed the
maximum statutory penalty, and if it does so, the sentence is void. Hern v. State, 892 S.W.2d
894, 896 (Tex. Crim. App. 1994). Without having objected to the indictment, a convicted
defendant may raise, for the first time on appeal, the argument that his punishment is outside
the statutory range for the crime for which he is convicted. See Mizell v. State, 119 S.W.3d
804, 806 (Tex. Crim. App. 2003). At issue here is the statute penalizing organized criminal activity. A defendant can
violate this statute in more than one way. If the defendant conspires with a combination of
others to commit certain listed offenses, he violates the statute. If the defendant conspires
with a combination of others and actually commits one of the listed offenses, he also violates
the statute. When an offense may be committed in more than one way, the indictment may allege
alternate methods of committing the offense. Martinez v. State, 498 S.W.2d 938, 943 (Tex.
Crim. App. 1973). An indictment may also allege differing methods of committing the
offense, such as organized criminal activity, in the conjunctive. See Kitchens v. State, 823
S.W.2d 256, 258 (Tex. Crim. App. 1991). The State alleged that Carter conspired with a combination of others to commit
forgery and that he committed forgery. The indictment alleges an offense in conjunctive
terms and is sufficient to enable a person of common understanding to know what is meant,
to give notice of the offense charged, and to enable the court, on conviction, to pronounce
the proper judgment. Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon 1989). Because
violating the statute under these circumstances raises the applicable punishment for the
offense to a third degree felony, Carter's sentence is permissible. Carter's issue is overruled. AFFIRMED. ____________________________ HOLLIS HORTON Justice Submitted on April 12, 2006 Opinion Delivered June 14, 2006 Publish Before McKeithen, C.J., Gaultney and Horton, JJ. 1. 2.
3. The relevant portion of the statute provides that "A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit one or more of the following: (1) . . . forgery . . . ." Tex. Pen. Code Ann. § 71.02(a)(1) (Vernon Supp. 2005).