Garcia v. Dial

• Decision Date: 02 April 1980
• Docket Number: No. 61450,No. 2,61450,2
• Citation: 596 S.W.2d 524
• Parties: David Martinez GARCIA, Petitioner, v. Preston H. DIAL, Jr., Respondent
• Court: Texas Court of Criminal Appeals

Page 524

596 S.W.2d 524

David Martinez GARCIA, Petitioner, v. Preston H. DIAL, Jr., Respondent.

No. 61450.

Court of Criminal Appeals of Texas, Panel No. 2.

April 2, 1980.

Fred A. Semaan, San Antonio, for petitioner.

Bill M. White, Dist. Atty. and Alan E. Battaglia, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for respondent.

DOUGLAS, PHILLIPS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an original action brought by David Martinez Garcia seeking a writ of mandamus directing the Honorable Preston H. Dial, Jr., Judge of the 175th Judicial District Court of Bexar County, to set aside an order reinstating Cause Number 78-CR-1183 on the court's docket; petitioner further seeks the issuance of a writ of prohibition preventing Judge Dial from proceeding to trial of petitioner in Cause Number 78-CR-1183.

The record reflects that petitioner was arrested for the offense of murder on February 28, 1978 and on that day posted bond. On June 7, 1978 an indictment was returned against petitioner in Cause Number 78-CR-1183.

On July 1, 1978, by legislative mandate, the provisions of the Texas Speedy Trial Act, Articles 32A.01 and 32A.02, V.A.C.C.P., became effective.

Nine days later, on July 10, 1978 petitioner Garcia filed a motion for continuance in which, contingent upon the court's grant of his motion, he specifically waived his rights under the Speedy Trial Act. ¹ The continuance motion was granted by respondent Dial.

On August 28, 1978, petitioner filed a motion to set aside indictment alleging that the State had on that day announced in open court that it was not ready for trial, and because more than 120 days had passed since the commencement of the criminal action against him, he was entitled to have the indictment in Cause Number 78-CR-1183, as well as the prosecution, set aside pursuant to Article 32A.02, ² supra. On the same day, respondent granted petitioner's motion and recorded his action dismissing the cause on the docket sheet.

On October 18, 1978, this Court handed down its opinion in Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978) in which it was held that any time which had elapsed prior to July 1, 1978, the effective date of the Speedy Trial Act, was not to be considered in determining a motion to set aside an indictment on the ground that the State had not been ready for trial within 120 days of the commencement of the criminal action.

Thereafter, on October 26, 1978, the State filed with respondent a "Motion for Reconsideration of Court Ruling" alleging that, in view of the decision in Wade v. State, supra, respondent had erroneously dismissed the prosecution against petitioner, and requesting that Cause Number 78-CR-1183 be reinstated on the docket and set for trial. The trial court set this motion for a hearing to be conducted on November 2, 1978, ³ and the record reflects that on that date, respondent granted the State's motion ordering the reinstatement of the cause.

Petitioner filed a document entitled "Waiver of a Speedy Trial" on November 16, 1978, and almost five months later, on April 3, 1978, filed a motion for continuance alleging the absence of several material witnesses. The record does not reflect whether such motion was presented to the trial court.

The next event reflected by the record is petitioner's application to this Court for the extraordinary relief which is the subject of this cause.

Petitioner contends that after respondent entered the order of August 28, 1978, dismissing the cause against him, the cause is "for all intents and purposes dead and there is no way the Court can breathe life back into the (cause);" therefore, respondent's reinstatement thereof is a nullity and of no effect. The State, however, asserts that, because petitioner was not entitled to have the prosecution against him dismissed pursuant to the provisions of the Speedy Trial Act, Judge Dial had no jurisdiction to dismiss the cause, and his August 28th order to that effect is void. It is the State's position that because the order of dismissal is void, the reinstatement of the cause upon the original indictment was not improper.

This Court has jurisdiction to consider the applications for issuance of the writs of mandamus and prohibition sought by petitioner under the authority of Article 5, § 5 of our State Constitution. ⁴ See generally Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978); and Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978) (Onion, P. J., concurring). Our determination, however, as to whether the writs sought by petitioner will issue, must entail as a preliminary matter an analysis of the nature of the jurisdiction of district courts, such as that over which respondent presides.

In 1928, this Court observed in Ex parte Armstrong, 110 Tex.Cr.R. 362, 8 S.W.2d 674, 675, 676 (1928),

Jurisdiction may be concisely stated to be the right to adjudicate concerning the subject matter in a given case. (Citation omitted) Unless the power or authority of a court to perform a contemplated act can be found in the Constitution or laws enacted thereunder, it is without jurisdiction and its acts without validity.

See also Solon v. State, 5 Tex.App. 301 (1878). Article 5, § 8 of the Texas Constitution provides that "(t)he District Court shall have original jurisdiction in all criminal cases of the grade of felony; . . ." Similarly, Article 4.05, V.A.C.C.P. prescribes:

District courts and criminal district courts shall have original jurisdiction in criminal cases of the grade of felony, . . .

Jurisdiction of the subject matter cannot be conferred by agreement; this type of jurisdiction exists by reason of the authority vested in the court by the Constitution and statutes. Ex parte Caldwell, 383 S.W.2d 587 (1964); Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933); Ex parte Armstrong, supra.

Furthermore, it is well settled that a valid indictment, or information if indictment is waived, is essential to the district court's jurisdiction in a criminal case. North v. State, 598 S.W.2d 634 (Tex.Cr.App., 1979); Lackey v. State, 574 S.W.2d 97 (Tex.Cr.App.1978); Menefee v. State, 561 S.W.2d 822 (Tex.Cr.App.1978); American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); Bruce v. State, 419 S.W.2d 646 (Tex.Cr.App.1967); see also Lott v. State, 18 Tex.App. 627 (1885). Unlike in civil cases where personal jurisdiction over a party may be had merely by that party's appearance before the court, Rule 120, Vernon's Texas Rules of Civil Procedure, criminal jurisdiction over the person cannot be conferred upon the district court solely by the accused's appearance, but requires the due return of a felony indictment, or the accused's personal affirmative waiver thereof and the return of a valid felony information upon complaint. Lackey v. State, supra; Ex parte Sandoval, 167 Tex.Cr.R. 54, 318 S.W.2d 64 (1958).

The attachment of jurisdiction in the district court conveys upon that court the power to determine all essential questions "and to do any and all things with reference thereto authorized by the Constitution and statutes, or permitted district courts under established principles of law." Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1069 (1926). See also Morrow v. Corbin, supra. A Court's having possession and jurisdiction of a case, that jurisdiction embraces everything in the case and every question arising which can be determined in the case, until it reaches its termination and the jurisdiction is thereby exhausted. Cleveland v. Ward, supra.

Further encompassed by jurisdiction is the court's authority "to carry the sentence or judgment of the court into execution. Jurisdiction, it is agreed, includes the power to determine either rightfully or wrongfully. It can make no difference how erroneous the decision may be. ⁵ (Citations omitted) . . . (J)urisdiction . . . (m)oreover . . . includes the power to decide as to the law of the case as well as the effect of the facts in issue." Morrow v. Corbin, supra, at 644, 645. See also Cleveland v. Ward, supra.

There can be no question under the foregoing principles, that Judge Dial had the jurisdiction to grant petitioner's motion to set aside the indictment against him, and we accordingly hold that the fact that respondent's exercise was based upon an erroneous interpretation of the applicable law in no way affected the validity of his order of dismissal. ⁶

We turn now to the question of the effect of Judge Dial's order of dismissal of the prosecution against petitioner.

It is well settled that when a trial court empowered with jurisdiction over a criminal case sustains a motion to dismiss the indictment or information, the person accused thereunder is, in law, discharged from the accusation against him; there is, concomitant to such dismissal, no case pending against the accused and, accordingly, no jurisdiction remaining in the dismissing court. See, e. g., Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972); Pugh v. State, 163 Tex.Cr.R. 258, 289 S.W.2d 929 (1956); Ringer v. State, 137 Tex.Cr.R. 242, 129 S.W.2d 654 (1938); Turner v. State, 21 Tex.App. 198, 18 S.W. 96 (1886); Venters v. State, 18 Tex.App. 198 (1885). Compare Article 44.31, V.A.C.C.P.

Furthermore, it is likewise axiomatic that where there is no jurisdiction, "the power of the court to act is as absent as if it did not exist," Ex parte Caldwell, supra at 589, and any order entered by a court having no jurisdiction is void. E. g., Ex parte Sandoval, supra; Ex parte Armstrong, supra. We accordingly conclude that, after respondent Dial dismissed the indictment against petitioner, the jurisdiction of the district court in Cause Number 78-CR-1183 was exhausted and the order entered thereafter purporting to reinstate that cause was void and of no effect. Cf. Matthews v. State, 40 Tex.Cr.R. 316, 50 S.W. 368 (1899). ⁷

In light of our analysis of the posture of this cause in the trial court, we now proceed to determine the merits of the...