Crumpton v. State

• Decision Date: 30 July 1998
• Docket Number: No. 2-96-390-CR,2-96-390-CR
• Parties: Orlanda Shantel CRUMPTON, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 763

977 S.W.2d 763

Orlanda Shantel CRUMPTON, Appellant, v. The STATE of Texas, State.

No. 2-96-390-CR.

Court of Appeals of Texas Fort Worth.

July 30, 1998.

Richard S. Podgorski, Denton, for appellant.

Bruce Isaacks, Criminal Dist. Atty., Yolanda M. Joosten, Michael Moore, Jamie Beck, Asst. Dist. Attys, Denton, Matthew Paul, State Pros. Atty., Austin, for appellee.

Before CAYCE, C.J., and MALONEY ^* and DAY, JJ.

OPINION

FRANK MALONEY, Justice (Assigned).

Appellant, pursuant to a plea bargain agreement, entered a plea of guilty to an indictment charging the felony offense of engaging in organized criminal activity (TEX. PENAL CODE ANN. § 71.02), the predicate offense being theft (TEX. PENAL CODE ANN. § 31.03). Adjudication of guilt was deferred and appellant was placed on community supervision for a period of three years and assessed a fine of $500.00. Subsequently after a hearing on the State's motion to adjudicate guilt, appellant was adjudged guilty and sentenced to two years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

Appellant proffers one point contending that her conviction is void in that TEX. PENAL CODE ANN. § 71.02 (Vernon 1994) ¹ violates the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States because it authorizes multiple punishments for the same criminal conduct. This issue was not raised in the trial court either by an attack on the indictment or on the jurisdiction of the trial court to proceed.

The State contends that we should dismiss the appeal for the reason that TEX.R.APP. P. 25.2(b)(3) was not complied with.

Appellant's plea of guilty was pursuant to a plea bargain. The indictment charged that the offense occurred on or about the 16th day of December, 1993. The plea occurred on October 20, 1995; the hearing on the State's motion to adjudicate, and the adjudication of guilt along with the sentence occurred on the 9th of August, 1996. There was no motion for arrest of judgment or motion for new trial filed by appellant. Appellant's motion for an extension of time to file her notice of appeal was granted by this court on the 2nd of October, 1996, retroactive to September 20, 1996, the date appellant actually filed her notice of appeal in the trial court. See TEX.R.APP. P. 10.05(b) and 26.3. Appellant does not contend that there was a breach of the plea agreement.

The State maintains that we do not have jurisdiction to entertain the appeal, the notice of appeal given by appellant being a "general notice of appeal" neither containing permission of the trial court to appeal the issue sought to be raised on appeal, nor notice of any issue raised and ruled upon by pre-trial motion in the trial court. See TEX.R.APP. P. 40(b)(1); Watson v. State, 924 S.W.2d 711, 714-15 (Tex.Crim.App.1996); Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.), cert. denied, 512 U.S. 1209, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994); Davis v. State, 870 S.W.2d 43, 45-46 (Tex.Crim.App.1994). The above cases hold that a general notice of appeal does not confer jurisdiction on the appellate courts to consider non-jurisdictional defects. Prior to the promulgation of TEX.R.APP. P. 25.2(b)(3), a general notice of appeal did confer upon the courts of appeals jurisdiction to consider jurisdictional defects. See Watson, 924 S.W.2d at 714-15; Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App. [Panel Op.] 1981). ² We find that it would be an injustice to apply the new rules to this case. We are confronted, however, with the question of whether appellant's point raises a jurisdictional defect of the type that can be considered on appeal under the laws existing prior to the enactment of TEX.R.APP. P. 25.2(b) (See old rule TEX.R.APP. P. 40(b)(1)).

The Constitution and the laws enacted by the legislature define and establish jurisdiction of the district courts. See Curry v. Wilson, 853 S.W.2d 40, 45 (Tex.Crim.App.1993); State v. Johnson, 821 S.W.2d 609, 612 (Tex.Crim.App.1991). Article V, section 8, of the Texas Constitution and article 4.05 of the Texas Code of Criminal Procedure place jurisdiction of all felony cases in the district courts. See TEX. CONST. art. V, § 8; TEX.CODE CRIM. PROC. ANN. art. 4.05 (Vernon Supp.1998). Engaging in organized criminal activity is a felony. See TEX. PENAL CODE ANN. § 71.02 (Vernon 1994).

Art. V, § 12 of the Texas Constitution, as amended, provides:

... The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

TEX. CONST. art. V, § 12(b). Compare Duron v. State, 956 S.W.2d 547, 549 (Tex.Crim.App.1997); with Cook v. State, 902 S.W.2d 471, 474-75 (Tex.Crim.App.1995); and Studer v. State, 799 S.W.2d 263, 273 (Tex.Crim.App.1990).

Jurisdiction requires that three essentials must be present: authority over the subject matter, authority over the person, and the power to proceed to judgment. See Fairfield, 610 S.W.2d at 779; Emery v. State, 57 Tex.Crim. 423, 123 S.W. 133, 134 (1909). If the trial court lacks such authority, any judgment by it is void and unenforceable. See Emery, 123 S.W. at 134. Compare Skillern v. State, 890 S.W.2d 849, 859 (Tex.App --Austin 1994, pet. ref'd); with National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1024-25 (1943).

The issue presented does not concern a defect in the indictment; but rather whether the trial court had jurisdiction to proceed to judgment. If an indictment is based on an unconstitutional statute, the conviction is void. See Golson v. State, 931 S.W.2d 705, 706 (Tex.App.--Corpus Christi 1996, no pet.) (op. on reh'g). Here, appellant maintains that TEX. PENAL CODE ANN. § 71.02 is defective because it authorizes multiple punishments for the same criminal conduct in violation of the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States.

Whether a constitutional violation is "jurisdictional" was discussed in Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 242, 46 L.Ed.2d 195, 197-98 (1975). There the Supreme Court explained that a guilty plea "simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established." 423 U.S. at 62, n. 2, 96 S.Ct. at 242, n. 2, 46 L.Ed.2d at 198, n. 2. However, if the claim is that the charge is one that the State may not constitutionally prosecute, a plea of guilty to that charge does not waive that claim. In Menna, the petitioner maintained that by pleading guilty, he did not waive his claim that the indictment should have been dismissed because of the Double Jeopardy Clause of the Fifth Amendment. The Supreme Court, relying on Blackledge v. Perry, held that "[w]here the state is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty." Menna, 423 U.S. at 62, 96 S.Ct. at 242, 46 L.Ed.2d at 198 (citing Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974)). In Courtney v. State, the First Court of Appeals in a case involving the constitutionality of TEX. TAX CODE ANN. § 159.201 (Vernon 1992), held that the appellant's claim was based on an unconstitutional application of the tax code section as opposed to the section being facially unconstitutional and was therefore not jurisdictional so as to avoid waiver by a plea of guilty. The court emphasized the difference between a constitutional issue that was based on a facially unconstitutional statute, that is a statute that is unconstitutional under every circumstance in which it is applied, and a claim based on an unconstitutional application only as to the appellant. See Courtney, 904 S.W.2d 907, 909 (Tex.App.--Houston [1st Dist.] 1995, pet. ref'd); see also Lopez v. State, 837 S.W.2d 863 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd).

We might disagree with the First Court of Appeals ³ as to the requirement that the statute be facially unconstitutional, given Menna v. New York, 423 U.S. at 62, 96 S.Ct. at 242, 46 L.Ed.2d at 198, but we do not reach that issue. Although appellant complains in her brief that the statute she was ultimately convicted under is unconstitutional as applied, her actual contention is that the statute is facially unconstitutional because it authorizes multiple punishments for the same offense by providing for a step up to a higher punishment after assessment of punishment for the underlying offense.

The statute provides:

§ 71.02 Engaging In Organized Criminal Activity

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more of the following:

(1) ... theft ...;

[Following the above paragraph are nine additional paragraphs listing various underlying substantive offenses.]

(b) Except as provided in Subsection (c) of this section, an offense under this section is one category higher than the most serious offense listed in subdivisions (1) through (10) of Subsection (a) of this section that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a felony of the third degree, except that if the most serious offense is a felony of a first degree, the offense is a felony of a first degree.

TEX. PENAL CODE ANN. § 71.02 (Vernon 1994).

The indictment charged that appellant intentionally and knowingly appropriated (described property) of the value of at least $750 or more but less than $20,000 from the owner without the effective consent of the owner and with intent to deprive the owner of the property; and that appellant did then and there commit said offense with intent to establish, maintain and participate in a combination and in the profits of a...