Fain v. State

Decision Date17 December 1998
Docket NumberNo. 03-95-00427-CR,03-95-00427-CR
Citation986 S.W.2d 666
PartiesRoger Eugene FAIN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Before Chief Justice ABOUSSIE, Justices POWERS, JONES, KIDD, B.A. SMITH, YEAKEL and ONION. *

BEA ANN SMITH, Justice.

After granting the State's motion for rehearing en banc, we withdraw the panel opinion and judgment issued March 12, 1998 and substitute this one in its place. This is an appeal from a conviction of murder. See Tex. Penal Code Ann. § 19.02(b)(1), (2) (West 1994). 1 After the jury returned a verdict of guilty, appellant Roger Eugene Fain pleaded true to the enhancement of punishment allegations as to prior convictions, and the trial judge assessed punishment at life imprisonment. On original submission, the panel voted to reverse appellant's conviction on an unassigned point of error, holding that the district court had no authority to act and therefore lacked jurisdiction over the case. The panel found that there had been no change of venue and concluded that the Williamson County district court erred by conducting this trial in the county seat of Smith County without a change of venue. The panel held that this procedure violated article V, section 7 of the Texas Constitution, and declared the district court's judgment void. We granted the State's motion for rehearing en banc.

Today, the Court en banc holds that the trial court's error was procedural, not jurisdictional, and that appellant waived any error relating to venue by failing to object at trial. We will therefore address the six points of assigned error that the panel did not reach. Appellant raises six points of error claiming that he was denied due process of law, that he did not receive effective assistance of counsel, and that the trial judge made erroneous evidentiary rulings. Because we find appellant's assigned points of error to be without merit, we will affirm the judgment of conviction.

Unassigned Error

We will first address the unassigned point of error on which the panel voted to reverse. The indictment upon which this conviction was obtained charged Roger Eugene Fain with the murder of Sandra Dumont in Williamson County, and was returned to the 277th District Court of Williamson County. The case came before Judge John R. Carter of the 277th District Court. Fain's counsel moved for a change of venue, arguing that inflammatory media publicity in Williamson County had created public hostility toward Fain and made the selection of an impartial jury in that county unlikely. Judge Carter announced in December 1994 that he intended to grant Fain's motion.

However, in January 1995, Judge Carter approved an agreement signed by the prosecutor, defense counsel, and Fain consenting to try the case in Smith County without a formal change of venue. The agreement specified that the case would be tried before a jury selected from a Smith County jury panel, but that the case would remain on the docket in Williamson County and all matters apart from the actual jury trial would be conducted in Williamson County. Furthermore, the defense and the prosecution both agreed to waive "any and all rights to a formal transfer of venue to Smith County" and "any and all rights to complain of the failure of the Court to formally transfer venue to Smith County." The case was tried by Judge Carter in Tyler, the county seat of Smith County. A Smith County jury convicted Fain of Dumont's murder, and Judge Carter sentenced Fain to life imprisonment. 2

Jurisdiction Versus Authority

In our prior opinion, this Court held that the act of trying Fain in Smith County while the case remained on the docket in Williamson County violated article V, section 7 of the Texas Constitution. Tex. Const. art. V, § 7. 3 The panel construed this circumstance as a jurisdictional error, which is a type of fundamental error that can be raised on appeal even if no objection was made at trial. See Methodist Hosps. of Dallas v. Texas Workers' Compensation Comm'n, 874 S.W.2d 144, 149 (Tex.App.--Austin 1994, no writ). However, in Davis v. State, 956 S.W.2d 555 (Tex.Crim.App.1997), the Court of Criminal Appeals carefully explained the difference between a court's jurisdiction and its authority or power to act. In that case, Davis challenged the revocation of his probation for possession of a controlled substance by arguing that the magistrate's order placing him on probation was void because the district judge's order of referral was signed two days after Davis's plea was taken. The court of appeals held that the late referral was untimely and ineffectual; therefore, jurisdiction was never conferred upon the magistrate, and the magistrate's order imposing probation was void. See Davis v. State, 928 S.W.2d 289, 291 (Tex.App.--Fort Worth 1996), rev'd, 956 S.W.2d 555 (Tex.Crim.App.1997). Believing the error to be jurisdictional, the court of appeals held that it could be raised for the first time on appeal and reversed Davis's conviction. See 928 S.W.2d at 291.

The Court of Criminal Appeals unanimously voted to reverse. In an opinion joined by seven members of the court, 4 Presiding Judge McCormick stated: "Jurisdiction is generally understood to denote judicial power or authority. However, ... this term is often misapplied." Davis, 956 S.W.2d at 557. The court explained that the Texas Constitution vests jurisdiction in the district courts, not in judges, for whom the constitution lists qualifications and provides certain circumstances in which judges may be disqualified from acting. See id.; see also Tex. Const. art. V, §§ 7, 11. Jurisdiction, the court noted, is something possessed by courts, not by judges: "It is a misnomer to speak of the jurisdiction of a judge outside the realm of the jurisdiction of the court in which he sits." 956 S.W.2d at 558. "The judge is merely an officer of the court ... [h]e is not the court itself." Id. at 557-58 (quoting Ex parte George, 913 S.W.2d 523, 526 (Tex.Crim.App.1995)).

The Davis court quoted at length from Judge Meyers's concurring opinion in Stine v. State, 908 S.W.2d 429 (Tex.Crim.App.1995), which explained:

Although the word "jurisdiction" has a broad meaning in common parlance, and is often used as a synonym for "authority" even in legal writing, it is traditionally considered in the law to identify a much more specific kind of power. A court's jurisdiction is comprised generally of its authority to render a particular kind of judgment (such as an order of commitment or a judgment for money damages) in some kinds of disputes (such as felony criminal prosecutions or personal injury lawsuits) between certain classes of persons (such as everyone present within the state or within a subdivision of the state). There are of course, many other nonjurisdictional aspects of litigation in which the conduct of a court is controlled by law. Sometimes, when the court's conduct violates one of these laws, especially a law which seems "mandatory" on its face, it is common to say that the court did not have authority to act as it did. But it is a mistake to say that the court was without jurisdiction in the matter.

Stine, 908 S.W.2d at 434 (Meyers, J., concurring) (citations omitted).

Davis then addressed the difference between a trial judge's acts that are void and those that are merely voidable. The court observed that when a judge is disqualified under the constitution or by statute, she In contrast, the Davis court observed, "errors involving the violation of a statutory procedure have not been deemed to be void, but voidable." See Davis, 956 S.W.2d at 559 (emphasis added). The court cited Miller v. State, 866 S.W.2d 243 (Tex.Crim.App.1993), a case in which the defendant argued that because the procedures for appointing a special judge 5 were not followed, the special judge lacked jurisdiction to hear the case. While the docket sheet noted that the special judge had been appointed on motion of the court, Miller had not received the statutorily required notice and hearing on the issue, and he had not agreed to the appointment. See Miller, 866 S.W.2d at 246. The court observed that Miller's attack was directed at the procedure by which the special judge was appointed, but did not challenge the court's jurisdiction in the proceeding below. See id. at 246 n. 6. Nor did Miller claim that the special judge was disqualified as a matter of law. See id. Miller's conviction was thus "voidable" but not "void." See Davis, 956 S.W.2d at 559.

                lacks authority over the proceedings and her actions are a nullity, i.e., void.  See Davis, 956 S.W.2d at 559.   As examples, the court listed circumstances such as when a judge presides over the same case she originally prosecuted, or is related to one of the parties by affinity or consanguity.  See id.;   see also Tex.  Const. art.  V, § 11.  Similarly, Davis noted that a temporarily appointed municipal judge's actions have been held void because he had not taken the oath of office as required for elected judges and appointed officers by article XVI, section 1.  See Davis, 956 S.W.2d at 559 (citing French v. State, 572 S.W.2d 934 (Tex.Crim.App.1978) (on second motion for reh'g))
                

The Davis court noted that the type of procedural error involved in Miller requires an objection to preserve it for appellate review: "Therefore, if a judge is qualified and not constitutionally or statutorily disqualified, his actions are not void due to procedural irregularities in the manner in which the case came before that individual, although it may be error rendering the conviction voidable." See Davis, 956 S.W.2d at 559 (citing Miller, 866 S.W.2d at 245-46) (emphasis added). Applying the law to the facts of the case before it, the court in Davis found that the jurisdiction of the trial court, the authority of its judge, and the magistrate's authority to hold the position of magistrate were not in question. See id. at 560. Specific...

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