Kutner v. Russell

TEAGUE, Judge,

concurring.

The facts in this cause reflect that William A. Kutner, Petitioner, was charged, tried, and convicted in the Municipal Court of the City of Austin. Thereafter, he appealed the conviction to the County Court at Law Number Two of Travis County, as was his lawful right. Such appeal will result in a trial de novo. See Art. 44.17, V.A.C.C.P. Cf. Ex parte Spring, 586 S.W.2d 482 (Tex.Cr.App.1979).

Petitioner asserts that, as part of the appeal, Judge Steve Russell, the elected judge of the County Court at Law No. Two of Travis County, was required to permit him to take the defensive driving course provided by Art. 6701d, Sec. 143A, Y.A.C.S. Judge Russell declined to permit appellant to invoke the provisions of that statute on the ground that the Act could be invoked only in the charging or Municipal Court of Austin. On original submission, this Court unanimously agreed with Judge Russell, holding the following:

When a person stands ‘charged’ with an offense he may, under circumstances prescribed by the Act, choose between going to trial or taking a driving course. After foregoing the ‘alternative to prosecution,’ choosing to go to trial, and after having been convicted, he may not invoke the statute on appeal to the county court at law.

On original submission, I agreed with what this Court stated in denying appellant *588any relief. I now find I agree for a different reason: The county court never had jurisdiction over the ancillary matter concerning the defensive driving course.

Until recent times, Art. V, Sec. 16, Texas Constitution, and Art. 44.17, supra, controlled the appeal of a conviction occurring in a justice or municipal court. Previously, any person convicted in a justice or municipal court of this State had the lawful right to a trial de novo in an appeal to the county court. That, however, is no longer true. For example, effective June 19, 1988, the 68th Legislature has authorized the Municipal Court of Austin to become a court of record, thus precluding a trial de novo in the county court from a conviction that has occurred in the Municipal Court of Austin. However, at the time appellant was accused of committing the traffic offense, an appeal from the Municipal Court to a county court at law of Travis County was to be conducted by de novo proceedings.

Even before the change in the law applicable to the Municipal Court of Austin, in a trial de novo in the appeal from a conviction suffered in the municipal court, the law only required that there be a new determination of guilt, not that the entire prosecution be commenced anew, or that any ancillary benefits which the defendant might have received in the original court must be granted him in the trial de novo proceedings.

A trial de novo in the county court simply means that a person shall receive a new trial on the merits of the accusation, and does not encompass such ancillary matters as contained within Art. 6701d, Sec. 143A, supra. Thus, the county court never had jurisdiction over the subject matter of a defensive driving course. Judge Russell correctly denied appellant permission to invoke the provisions of the statute. See and compare Kirksey v. State, 58 Tex.Cr.R. 188, 125 S.W. 15 (1910).

For the above reasons, I concur to the overruling of appellant’s motion for leave to file his motion for rehearing.