Boetscher v. State

• Decision Date: 11 January 1990
• Docket Number: No. 07-88-0288-CR,07-88-0288-CR
• Citation: 782 S.W.2d 954
• Parties: William Michael BOETSCHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 954

782 S.W.2d 954

William Michael BOETSCHER, Appellant, v. The STATE of Texas, Appellee.

No. 07-88-0288-CR.

Court of Appeals of Texas Amarillo.

Jan. 11, 1990.

Rehearing Denied Feb. 9, 1990.

Discretionary Review Granted April 11, 1990.

Chuck Lanehart, David A. Schulman, Lubbock, for appellant.

Travis S. Ware, Lubbock, for appellee.

Before DODSON, BOYD and POFF, JJ.

DODSON, Justice.

Appellant William Boetscher appeals from a denial of a petition for writ of habeas corpus in the 72nd District Court of Lubbock County, Texas. By three points of error appellant argues that the State of Texas does not have personal jurisdiction over appellant and he attacks the constitutionality of section 25.05(g)(2) of the Texas Penal Code on its face and as it applies to appellant. We affirm.

On 1 June 1977, appellant and Patricia Boetscher were divorced in Wayne County, Michigan. In the divorce decree, appellant was ordered to pay child support in the amount of $30.00 each week for each of their two children. After the divorce, Patricia Boetscher and the two children moved to Lubbock, Texas. It is undisputed that appellant did not continue to pay child support. Patricia Boetscher filed a cause of action pursuant to the Uniform Reciprocal Enforcement of Support Act, Texas Family Code Annotated section 21.01 et seq. (Vernon 1986), in Lubbock, Texas, and the petition was certified and forwarded to the Michigan court. No child support payments were made.

Appellant was indicted for the offense of criminal nonsupport pursuant to Texas Penal Code Annotated section 25.05 (Vernon 1989) on 9 September 1988, and was extradited from Michigan to Texas. Appellant filed an application for a writ of habeas corpus on 26 October 1988 to have the charge dismissed and appellant released from custody. On 3 November 1988, appellant's application for writ of habeas corpus was denied. It is from this denial that appellant appeals.

Appellant asserts by his first point of error that the acts alleged in the indictment are not sufficient to give the State of Texas personal jurisdiction over him. In support of that assertion, appellant claims that section 1.04(a)(1) of Texas Penal Code Annotated (Vernon 1974) does not confer jurisdiction on the Texas courts since section 25.05 of the Texas Penal Code Annotated (Vernon 1989) does not include as an element of the offense, that the children be deprived of support. Appellant claims that section 25.05 requires that the parent be legally obligated to pay support and that he fail to pay support. As a result, appellant argues the effect which occurred in Texas is not specifically defined by the statute. Appellant also proposes that the due process clause of the fourteenth amendment operates as a limitation on the jurisdiction of the state court over a nonresident defendant relying on Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). In regard to the latter claim, Kulko is a civil case and the "effects" test and the concept of minimum contacts as explicated therein has no application in a criminal case.

In Texas, jurisdiction is comprised of the power of the trial court over the subject matter of the case and with personal jurisdiction over the accused. Subject matter jurisdiction is conveyed by statute or constitutional provision. A district trial court in Texas has jurisdiction over criminal matters conferred by virtue of the Texas Constitution. State ex. rel. Holmes v. Denson, 671 S.W.2d 896, 898 (Tex.Crim.App.1984); Tex. Const. art. V, § 5. Personal jurisdiction over the accused is invoked by the filing of a sufficient indictment or information if indictment is waived. Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App.1981); Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Crim.App.1980).

The territorial jurisdiction provision which is questioned by appellant is set out in Texas Penal Code Annotated section 1.04 (Vernon 1974) and provides that:

(a) This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which he is criminally responsible if:

(1) either the conduct or a result that is an element of the offense occurs inside this state ...

(c) An offense based on an omission to perform a duty imposed on an actor by a statute of this state is committed inside this state regardless of the location of the actor at the time of the offense....

Section 25.05 of the Texas Penal Code Annotated (Vernon 1989) provides in pertinent part and is incumbent upon the state to prove that:

(a) an individual commits an offense if he intentionally or knowingly fails to provide support for his child younger than 18 years of age, or for his child who is the subject of a court order requiring the individual to support the child.

In Roberts v. State, 619 S.W.2d 161, 164 (Tex.Crim.App.1981), the Court of Criminal Appeals explained that section 1.04 incorporated the objective territorial theory outlined by Justice Oliver Wendell Holmes in Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735, 738 (1911). The state may punish acts done outside a jurisdiction intended to produce and producing detrimental effects within the state as if the actor had been present at the effect. Id. The Roberts Court elaborated by quoting from 22 C.J.S. Criminal Law section 134 as follows:

If a crime covers only the conscious act of the wrongdoer, regardless of its consequences, the crime takes place and is punishable only where he acts; but, if a crime is defined so as to include some of the consequences of an act, as well as the act itself, the crime is generally regarded as having been committed where the consequences occur, regardless of where the act took place, and under a statute so providing a person who commits an act outside the state which affects persons or property within the state, and which, if committed within the state, would be a crime, is punishable as if the act were committed within the state. (emphasis added)

Id.

The practice commentary to section 1.04 of the Texas Penal Code expressly states that subsection (a)(1) combines subjective and objective territorial principles previously embodied in specific statutes scattered throughout the Penal Code and Code of Criminal Procedure. Jurisdiction is conferred over offenses commenced within the state but completed without (subjective) and for offenses commenced without the state but consummated within (objective). Moreover, the commentary states that the usual application of subsection (c) will probably be in the field of domestic relations (e.g., nonsupport), but it is not so limited. Tex. Penal Code Ann. § 1.04 (Vernon 1974).

Furthermore, the Texas Family Code provides that the jurisdiction of any proceeding under the Revised Uniform Reciprocal Enforcement of Support Act (including provisions for the enforcement of criminal nonsupport) is vested in the district court and any other courts authorized to order support for children. Tex.Fam.Code Ann. § 21.10 (Vernon Supp.1989). In that regard, "court" means the district court of this state or any other court authorized to order support for children and, when the context requires, means the court of any other state as defined in substantially similarly reciprocal law. Tex.Fam.Code Ann. § 21.02(1) (Vernon Supp.1989). Parenthetically, we note that the Texas Family Code, Chapter 21, displays a table of jurisdictions wherein the Uniform Reciprocal Enforcement of Support Act has been adopted. This table indicates that the State of Michigan has adopted the Act. See M.C.L.A. §§ 780.151 to 780.183 (West).

While we are cognizant that Roberts was a case involving the interference with child custody and the enforcement of a Texas judgment, we believe that the same principles apply here. In cases prosecuted under section 25.05 of the Texas Penal Code, the act of intentionally or knowingly failing to provide support for a child younger than 18 years of age or who is the subject of a court order requiring the individual to support the child, has the necessary consequence and detrimental effect and result of denying a child who is a Texas resident the support to which he is entitled to receive by a court order.

The interest in protecting the viability of the judgment of a court ordering support payments to minor children by their parents and the rights of Texas residents to receive court awarded support gives the State of Texas jurisdiction to punish the acts of a person committed wholly outside the territorial boundaries of Texas when those acts thwart this valid interest. State v. Paiz, 777 S.W.2d 575, 577 (Tex.App.--Amarillo 1989, pet. granted).

The Texas legislature expressly announced criminal enforcement provisions whereby the governor of this state may demand of the governor of another the surrender of a person found in that state who is charged criminally in this state with failing to provide for the support of any person. Tex.Fam.Code Ann. § 21.05 (Vernon Supp.1989).

The indictment in this cause alleges that:

[Appellant] on or about the 1ST DAY OF MARCH, 1988, did then and there intentionally and knowingly fail to provide support, that the [appellant] could have provided and that the [appellant] was legally obligated to provide for [first child], who was then and there the child of the said [appellant], and said child was then and there under the age of 18 years, and the [appellant] was then residing in another state, to-wit: Michigan;

II.

AND further the said [appellant] on or about the 1ST DAY OF MARCH, 1988 in Lubbock County and State of Texas, did then and there intentionally and knowingly fail to provide support, that the [appellant] could have provided and that the [appellant] was legally obligated to provide for [second child], who was then and there the child of the said [appellant], and said child was then and there under the age of 18 years, and the [appellant] was then residing in another state, to...