IN THE
TENTH COURT OF APPEALS
No. 10-12-00216-CR
No. 10-12-00217-CR
MARK KEN TAFEL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Hamilton County, Texas
Trial Court Nos. CR07724 and CR07725
MEMORANDUM OPINION
In each cause number, the trial court convicted Mark Ken Tafel of the offense of
unlawful carrying of a handgun by a license holder and assessed his punishment at a
fine of $1,500.00. We vacate and remand.
Background Facts
Mark Ken Tafel is a County Commissioner for Hamilton County. Sheriff Gregg
Bewley met with Tafel in February 2011 over concerns that Tafel was carrying a
concealed handgun to meetings of the Commissioners Court and informed Tafel that he
was not authorized to bring a weapon to the meetings. On April 14, 2011, County Judge
Randy Mills issued a letter to Tafel authorizing Tafel to carry concealed handguns to
the meetings. Judge Mills gave a copy of the letter to Tafel and also kept a copy for
himself. Judge Mills did not file the letter in any court in Hamilton County.
On November 14, 2011, Sheriff Bewley attended the meeting of the
Commissioners Court and observed a bulge that he believed was a weapon under
Tafel’s left arm. Sheriff Bewley recovered a .45 caliber handgun and a .22 caliber
revolver from Tafel, and he placed Tafel under arrest.
Tafel was indicted on two felony charges and two misdemeanor charges related
to the incident. The trial court acquitted Tafel on the felony charges and convicted him
on the misdemeanor charges.
Jurisdiction
In his first issue, Tafel argues that the 220th District Court of Hamilton County
did not have subject-matter jurisdiction over the misdemeanor charges. The Texas
Code of Criminal Procedure states that:
District courts and criminal district courts shall have original jurisdiction
in criminal cases of the grade of felony, of all misdemeanors involving
official misconduct, and of misdemeanor cases transferred to the district
court under Article 4.17 of this code.
TEX. CODE CRIM. PRO. ANN. art. 4.05 (West 2005). A county court has exclusive original
jurisdiction of misdemeanors other than misdemeanors involving official misconduct
Tafel v. State Page 2
and cases in which the highest fine that may be imposed is $500 or less. TEX. GOV’T
CODE ANN. § 26.045 (a) (West Supp. 2012).
The State argues that the charges were within the subject-matter jurisdiction of
the district court because the charges involve official misconduct. Official misconduct
is defined as “an offense that is an intentional or knowing violation of a law committed
by a public servant while acting in an official capacity as a public servant.” TEX. CODE
CRIM. PRO. ANN. art. 3.04 (1) (West 2005). Tafel argues that the indictment did not allege
official misconduct so as to invest the district court with subject-matter jurisdiction.
To constitute an indictment, the charging instrument must charge: (1) a person,
and (2) the commission of an offense. Teal v. State, 230 S.W.3d 172, 179 (Tex. Crim. App.
2007). The proper test to determine if a charging instrument alleges "an offense" is
whether the allegations in it are clear enough that one can identify the offense alleged.
Teal v. State, 230 S.W.3d at 180.
In Teal, the indictment alleged the offense of hindering apprehension, but the
indictment failed to include an allegation that the defendant had knowledge of the
suspect's status as a fugitive felon, the element that raised the offense to a felony. The
Court found that the indictment was defective because it omitted one of the two
elements that raise hindering apprehension from a misdemeanor to a felony, but it was
nonetheless 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. Teal v. State, 230 S.W.3d 172, 182. The Court further found that
Tafel v. State Page 3
the appellant should have objected to the defective indictment if he was confused about
whether the State did or intended to charge him with a felony. Id.
In Kirkpatrick v. State, the appellant was indicted for one felony offense and two
misdemeanor offenses. The appellant was convicted of the two misdemeanor offenses
and argued on appeal that the district court lacked subject-matter jurisdiction over the
misdemeanor offenses. Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009). The
Court found that “although the indictment properly charged a misdemeanor and
lacked an element necessary to charge a felony, the felony offense exists, and the
indictment's return in a felony court put appellant on notice that the charging of the
felony offense was intended.” Kirkpatrick v. State, 279 S.W.3d at 329. The Court further
noted that “the face of each indictment contains a heading: ‘Indictment-Tampering
with a Governmental Record 3rd Degree Felony,--TPC § 37.10(a)-Code 73990275.’” Id.
The Court held that because Penal Code section was easily ascertainable, and the
notation that the offense was a third-degree felony clearly indicated that the State
intended to charge a felony offense, the district court had subject-matter jurisdiction.
Appellant had adequate notice that she was charged with a felony. If she had confusion
about whether the State did, or intended to, charge her with a felony, she could have,
and should have, objected to the defective indictment before the date of trial.
In the case before us, the indictments alleged that Tafel:
did then and there, in Hamilton County, Texas, while [Tafel] was a person
licensed to carry a handgun under Subchapter H, Chapter 411,
Government Code of Texas, intentionally or knowingly carry a handgun
under Subchapter H, Chapter 411, at a meeting of a governmental entity,
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to-wit: a meeting of the Hamilton County, Texas Commissioners Court at
the Hamilton County Texas Courthouse Annex District Courtroom…
The indictments do not allege that Tafel was a public servant acting in his official
capacity. The indictments do not in any way reference official misconduct, nor do they
clearly indicate that the State intended to charge Tafel with official misconduct. The
indictments reference TEX. PENAL CODE ANN. § 46.035 (c) (West 2011). Section 46.035 is
a misdemeanor offense and cannot be elevated to a felony offense. Unlike Teal and
Kirkpatrick, the indictments do not omit an element necessary to raise the offense from a
misdemeanor to a felony offense. The indictments do not give Tafel adequate notice
that the State intended to charge him with misdemeanors involving official misconduct.
The Texas Code of Criminal Procedure states:
If the defendant does not object to a defect, error, or irregularity of form or
substance in an indictment or information before the date on which the
trial on the merits commences, he waives and forfeits the right to object to
the defect, error, or irregularity and he may not raise the objection on
appeal or in any other postconviction proceeding.
TEX. CODE CRIM. PRO. ANN. art. 1.14 (b) (West 2005). The indictments properly charged
misdemeanor offenses. Unlike Teal and Kirkpatrick, the indictments were not defective
in failing to allege an element of the felony offense, and Tafel did not waive his
complaint.
Additionally, prior to the start of the bench trial, the trial court noted that the
cases were misdemeanors.
THE COURT: … In Cause 7724 and 7725, although indicted by the Grand
Jury, these are, in fact, Class A Misdemeanor cases; is that correct?
STATE: I believe that’s correct.
Tafel v. State Page 5
THE COURT: Is that correct, Mr. Lewellen?
MR. LEWELLEN: It is, Your Honor.
THE COURT: And to the extent that these are misdemeanor cases that might
not otherwise be necessarily in the jurisdiction of the District Court, is
there an agreement that the District Court, being the 220th District Court of
Hamilton County, that the Court has jurisdiction of these cases for all
purposes?
MR. LEWELLEN: Yes, Your Honor.
THE COURT: And do you agree, Mr. Tafel?
THE DEFENDANT: Yes, sir. And the State?
THE STATE: We agree, Your Honor.
The State did not inform the trial court or Tafel that the cases were misdemeanors
involving official misconduct and that, therefore, the district court had jurisdiction over
the charges. The parties acknowledged that the charges were misdemeanors and
agreed that the District Court had jurisdiction. Subject-matter jurisdiction cannot be
conferred by agreement of the parties; jurisdiction must be vested in a court by
constitution or statute. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996),
overruled on other grounds, State v. Medrano, 67 S.W.3d 892, 903 (Tex. Crim. App. 2002).
The district court did not have subject-matter jurisdiction over the misdemeanor
offenses. The indictments did not allege a misdemeanor involving official misconduct
to give the district court jurisdiction over the charges. We sustain Tafel’s first issue on
appeal. Because of our disposition of the first issue, we need not address the remaining
issues. TEX. R. APP. P 47.1.
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Conclusion
Because the trial court lacked jurisdiction to hear the causes, we vacate the
judgments of the trial court and remand the causes to the district court. The district
court is instructed to transfer the causes to the county court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Vacated and remanded
Opinion delivered and filed February 21, 2013
Do not publish
[CR25]
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