Azeez v. State

• Decision Date: 05 March 2008
• Docket Number: No. PD-010-07.,PD-010-07.
• Citation: 248 S.W.3d 182
• Parties: Sheriff K. AZEEZ, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

248 S.W.3d 182

Sheriff K. AZEEZ, Appellant v. The STATE of Texas.

No. PD-010-07.

Court of Criminal Appeals of Texas.

March 5, 2008.

Alexander B. Wathen, Houston, for Appellant.

Kim R. Trujillo, Asst. City Atty., Houston, Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

Although the charging instrument in this case alleged a misdemeanor offense in the express terms of Section 38.10 of the Texas Penal Code,¹ the Fourteenth Court of Appeals declared that the appellant was actually prosecuted and convicted under Section 543.009 of the Texas Transportation Code.² However, the jury assessed a punishment that, while it was comfortably within the maximum fine permitted under the Penal Code provision, far exceeded the permissible maximum fine under the Transportation Code provision. We granted the appellant's petition for discretionary review in order to sort out this anomaly.³ We will reverse the judgment of the court of appeals.⁴

FACTS AND PROCEDURAL POSTURE

On June 19, 2003, the appellant was pulled over by a Houston police officer and issued a speeding citation. By signing the citation, the appellant promised to appear in Municipal Court No. 15 on July 21, 2003. He failed to appear, and was charged by complaint with "unlawfully and knowingly fail[ing] to appear ... in accordance with the terms of his release after having been lawfully released from custody on condition that he subsequently appear in said court."⁵ The appellant was tried a year later for this offense in Houston Municipal Court No. 8, and was convicted by a jury and fined $400. He appealed his conviction to the County Criminal Court at Law No. 12 of Harris County, which affirmed his conviction. He next appealed his conviction to the Fourteenth Court of Appeals, which likewise affirmed his conviction, albeit "for different reasons" than those given by the County Criminal Court at Law.⁶

On the first day of his trial in municipal court, before jury selection commenced, the appellant orally moved to quash the complaint, arguing that, whereas it charged him with an offense in the express terms of the Penal Code provision, he should instead have been charged under the Transportation Code provision, which he contended is "the more specific" provision. The city prosecutor responded that the complaint had not charged the appellant under either of these provisions, but had instead charged him with a violation of City of Houston Ordinance 16-47.⁷ The appellant answered that he could not be charged under the ordinance because the city "cannot legislate in areas there is a controlling State law, so that's void — even if he is under that ordinance." Alternatively, he argued (as we understand him) that, in view of the city ordinance, he should not have been charged by a complaint that seemed to be couched in terms of a Penal Code provision. Either way, he maintained, he should not have been charged with an offense under Section 38.10(a) of the Penal Code, as the complaint apparently had done. The trial court denied his motion to quash.

Events at trial seemed to bear out the appellant's claim that he had been charged under the Penal Code offense. During voir dire, in testing the qualification of prospective jurors, the appellant inquired whether they could all consider assessing punishment within the range of a fine between $1 and $500 — a range that is consistent with the Penal Code and city ordinance offenses, but inconsistent with the range of punishment for the Transportation Code offense. At the close of the evidence, the appellant again complained, this time in the context of a motion for directed verdict, that "it's not clear in the Complaint which offense the Defendant is charged with." It was apparently clear enough to the trial judge, however, when he came to issue his written charge to the jury. There, without objection from either party, the trial court expressly set out the offense with which the appellant had been charged in terms of Section 38.10(a) of the Penal Code, and authorized a fine of up to $500.⁸

During her final summation to the jury, the prosecutor read out loud to the jury part of the speeding citation that the appellant had signed, containing a warning that in the event he should fail to appear as promised, a warrant would issue for his arrest and he would be subject to an "ADDITIONAL CHARGE FOR FAILURE TO APPEAR WITH A FINE OF $200." She then urged the jury to "[a]ssess what fine you deem appropriate." The jury quickly found the appellant guilty and assessed a fine of $400. The appellant filed a motion for new trial in which he argued, inter alia, that the trial court had erred in failing to grant his motion to quash the complaint on the basis that it had charged him with the broad Penal Code offense rather than the more specific offense under the Transportation Code. The trial court denied the motion. The appellant reiterated this argument in his appeal to the County Criminal Court at Law, which ruled in a one-page opinion that he had "waived" this and all of his other challenges to the complaint because he had "made his objections after the start of voir dire."

The court of appeals likewise affirmed the appellant's conviction, but eschewed the County Criminal Court at Law's procedural-default rationale in favor of a ruling on the merits of the appellant's claim.⁹ The court of appeals held that the complaint did charge the appellant with the Transportation Code offense,¹⁰ and did not charge him under either the city ordinance or the Penal Code provision.¹¹ We believe that in so holding, however, the court of appeals erred in two significant respects. First, in holding that the appellant was actually charged with the Transportation Code offense, the court of appeals ignored 1) the express language of the complaint itself, 2) the fact that the court's charge instructed the jury to convict the appellant (if at all) under the express language of the Penal Code provision, and 3) the fact that the jury was authorized to, and did in fact, assess a fine in excess of that which is permitted for the Transportation Code offense. Second, in the process of holding that the Transportation Code provision and the Penal Code provision are not in pari materia, the court of appeals misconstrued the scope of Section 38.10(a) of the Penal Code. We hold that the two provisions should, in fact, be construed in pari materia, and that the trial court erred to allow the appellant to be prosecuted and punished under the Penal Code provision instead of the Transportation Code provision.

ANALYSIS

Penal Code or Transportation Code?

The court of appeals held that the complaint was sufficient to allege every element of the Transportation Code offense.¹² While we do not take issue with this proposition, it does not necessarily follow that it was in fact the Transportation Code offense that appellant was charged with, to the exclusion of either the city ordinance or the Penal Code provision. With respect to the former, the court of appeals concluded that the complaint did not allege an offense under Section 16-47 of the Houston City Ordinances because it alleged elements not necessary to state an offense under that provision, and did not conclude with the phrase, "Contrary to said ordinance," as is permissible in complaints that charge only city ordinance violations.¹³ We would add to these observations that the complaint also did not allege that the appellant failed to appear for the "trial" of a charge pending in municipal court-only that he failed to appear in municipal court according to the terms upon which he had been released (without specifying what those terms were or setting out the citation in haec verba).¹⁴ We therefore agree with the court of appeals that, notwithstanding the State's persistent assertions during trial and in its various appellate briefs, the complaint did not give the appellant sufficient notice of (and may not even have been adequate to allege) a violation of the city ordinance.

But we reject the court of appeals's conclusion that the complaint clearly charged the appellant with the Transportation Code offense to the exclusion of the Penal Code offense. If anything, the opposite is more accurate. The language of the complaint tracked Section 38.10(a) of the Penal Code word for word, whereas it merely paraphrased the elements necessary to charge an offense under the Transportation Code. Moreover, the complaint was not so clear in charging the Transportation Code offense that it sufficed to alert the trial court that it should instruct the jury that it could convict, and, more critically, punish the appellant under that offense, rather than Section 38.10(a) of the Penal Code. Indeed, were it truly the case, as the court of appeals concluded, that the appellant was actually tried for and convicted of the Transportation Code offense, then the $400 fine the jury assessed and the trial court imposed would be patently illegal, because it was in excess of the maximum ($200) authorized by law. The appellant could complain of such an illegality in his sentencing at any stage of appellate and post-conviction proceedings.¹⁵

Still, the court of appeals believed that the appellant could not, in fact, have been charged with the offense of failing to appear under Section 38.10(a) of the Penal Code.¹⁶ This perception is based upon a misreading of a portion of the relevant statute. The court of appeals opined:

Section 38.10 of the Penal Code applies to persons who are in custody pursuant to a court order. * * * All of the elements of section 38.10 are included in the [appellant's] complaint, but the definition of custody in [Chapter 38 of the Penal Code] specifically limits section 38.10 to those situations when a person is under arrest pursuant to a court order of this state or...