Rolando Vega, Jr. v. State

NUMBER 13-05-133-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROLANDO VEGA, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

OPINION ON REMAND

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Garza

This is a revocation of community supervision case. On remand from the Texas Court of Criminal Appeals, we address appellant Rolando Vega, Jr.'s contention that, because his indictment alleged a misdemeanor rather than a felony, the district court lacked jurisdiction to impose probation for a state jail felony (thus rendering the judgment void); therefore, the district court had no jurisdiction to revoke his probation. ⁽¹⁾

We affirm.

Factual and Procedural Background

On November 10, 2002, officers were dispatched to a residence in response to terroristic threats. As the officers were en route, they were advised by dispatchers that a van was leaving the area. Officers began to pursue the van and recognized appellant as the driver. Appellant stopped the van and was ordered to exit the vehicle. Instead, appellant locked his door and yelled, "I didn't do nothing, you're scaring me." Appellant refused to exit the vehicle and then fled the scene in the van. Appellant traveled approximately two miles to his father's residence and then proceeded to flee on foot. The officers apprehended appellant behind a neighboring residence.

Appellant was charged in district court with evading arrest. Pursuant to a plea agreement, appellant pleaded nolo contendere to the charge. On September 4, 2003, the district court found him guilty of evading arrest or detention, a state jail felony. See Tex. Pen. Code Ann. § 38.04(b)(1) (Vernon 2003). In accordance with the plea agreement, the district court assessed appellant's punishment at two years' imprisonment, suspended the sentence, placed appellant on community supervision for three years, and imposed a $1,500 fine. On December 17, 2004, the State moved to revoke appellant's community supervision. Appellant pleaded "not true" to the alleged violations. The district court found that appellant violated the terms of his probation, revoked his probation, sentenced him to two years' imprisonment, and assessed costs and a fine. This appeal ensued.

Analysis

Appellant's sole issue is that, because the indictment alleged only a misdemeanor offense, the district court-a felony court-did not have jurisdiction. See Tex. Const. art. V, § 8; Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2005). ⁽²⁾

To vest the court with jurisdiction, an indictment must satisfy the constitutional requirement of subject-matter jurisdiction. Teal v. State, No. PD-0689-06, 2007 Tex. Crim. App. LEXIS 316, at *24 (Tex. Crim. App. Mar. 7, 2007). To meet this requirement, the district court and the defendant must be able to determine from the face of the indictment that the State intended to charge the defendant with a felony or other offense for which the district court has jurisdiction. Teal, 2007 Tex. Crim. App. LEXIS 316, at *25. The section of the penal code under which appellant is charged-section 38.04-states in part that, "A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him." Tex. Pen. Code Ann. § 38.04(a). The statute classifies this offense as a misdemeanor. The offense is a felony, however, "if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section." Id. § 38.04(b)(1).

The indictment in this case alleges that Rolando Vega, Jr. "on or about the 10th day of November A.D., 2002 . . . did then and there intentionally flee from Joel Bear, a person [appellant] knew was a peace officer who was attempting lawfully to arrest or detain [appellant]." Appellant argues that, because the indictment fails to allege that he used a vehicle in the commission of the offense, he was charged only with a misdemeanor offense. Thus, he concludes, the district court lacked jurisdiction to impose probation for a state jail felony and to revoke his probation because district courts have subject-matter jurisdiction only over felonies, misdemeanors involving official misconduct, and misdemeanor cases transferred to the district court under article 4.17 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 4.05.

We disagree. On its face, the indictment in this case shows the State's intent to charge a felony or other offense for which the district court has jurisdiction. Specifically, the face of the indictment describes the offense as "Evading Arrest or Detention, TPC 38.04/State Jail Felony." Thus, the indictment satisfies the constitutional requirement of subject-matter jurisdiction and did vest the district court with jurisdiction. See Teal, 2007 Tex. Crim. App. LEXIS 316, at *24. Further, because the indictment did vest the district court with jurisdiction, appellant waived his complaint of the substance of the indictment by failing to object prior to the day of trial. See Teal, 2007 Tex. Crim. App. LEXIS 316, at *26-*27 (concluding that the indictment was sufficient to vest jurisdiction because "it charged 'an offense' and one could fairly conclude from the face of the charging instrument that the State intended to charge a felony offense" and stating that "[i]f appellant was confused about whether the State did or intended to charge him with a felony, he could have and should have objected to the defective indictment before the date of trial"). ⁽³⁾ Accordingly, appellant's sole issue is overruled.

The judgment of the district court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered and

filed this the 21st day of June, 2007.

1.

A defendant can raise on appeal from a revocation proceeding an error in the original plea hearing if the error would render the original judgment void. Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). A judgment of conviction for a crime is void when: (1) there is a constitutional defect in the charging instrument (i.e. indictment, information, or complaint), (2) there is a lack of subject matter jurisdiction over the offense charged, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived. Id. Appellant raises a void-judgment issue here. Accordingly, we have jurisdiction to examine whether appellant's original conviction was void. In addition, the trial court has certified appellant's right to appeal from the revocation of his probation. See Tex. R. App. P. 25.2(a)(2).

2. Generally, a defendant must object to any error in the indictment before the day of trial or he forfeits the right to complain about any defect, error or irregularity. See Teal v. State, No. PD-0689-06, 2007 Tex. Crim. App. LEXIS 316, at *12 (Tex. Crim. App. March 7, 2007); Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990). However, if the indictment is "fatally flawed," such as when the indictment fails to charge a person or an offense, then it is not an indictment and it does not vest the trial court with jurisdiction. See Teal, 2007 Tex. Crim. App. LEXIS 316, at *18; Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995). Further, to vest the court with jurisdiction, an indictment must also satisfy the constitutional requirement of subject-matter jurisdiction. Teal, 2007 Tex. Crim. App. LEXIS 316, at *24. We conclude that appellant's complaint, that the district court lacked subject-matter jurisdiction, may be raised for the first time on appeal, without the usual requirements for preservation of error. See Teal, 2007 Tex. Crim. App. LEXIS 316, at *16-*18.

3.

Appellant was indicted on May 13, 2003, and the district court conducted plea proceedings on July 18, 2003. At the plea proceeding, before appellant entered his plea, the district court admonished appellant that he was charged with a state jail felony and that he faced possible state jail felony punishments, including confinement in state jail. Appellant said nothing about the sufficiency of the indictment during this time. Because this indictment was presented to a district court with felony jurisdiction, it is logical to assume that appellant prepared for a felony trial in district court, not a misdemeanor trial in county court. See Teal, 2007 Tex. Crim. App. LEXIS 316, at *26-*27 n.51.