Gonzales v. State

• Decision Date: 28 January 1987
• Docket Number: No. 890-85,890-85
• Parties: Daniel GONZALES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 746

723 S.W.2d 746

Daniel GONZALES, Appellant, v. The STATE of Texas, Appellee.

No. 890-85.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 28, 1987.

E.B. Barretto, San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty., Beth Taylor and Charles Estee, Asst. Dist. Attys. San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of the offense of arson under V.T.C.A. Penal Code, Sec. 28.02(a)(1), and his punishment assessed at five years. Sentence was suspended and appellant was placed on probation for a period of ten years. Subsequently appellant's probation was revoked, and a five year sentence was imposed.

Finding a fundamental defect in the indictment, the court of appeals reversed appellant's conviction and dismissed the prosecution. Gonzales v. State, 695 S.W.2d 81 (Tex.App.--San Antonio 1985). We granted the State's Petition for discretionary review in order to examine the State's contention that the court of appeals erred in holding the indictment fundamentally defective.

I.

It is an offense under Sec. 28.02(a)(1), supra, to "start[] a fire or cause[] an explosion with intent to destroy or damage any building, habitation or vehicle ... knowing that it is within the limits of an incorporated city or town[.]" ¹ The indictment in this cause alleged that:

"on or about the 9th day of JUNE, A.D., 1982, DANIEL GONZALES did ... INTENTIONALLY START A FIRE with intent to destroy and damage a HABITATION GENERALLY LOCATED IN THE 4000 BLOCK OF CENTRALIA STREET, KNOWING THAT IT WAS WITHIN THE CITY OF SAN ANTONIO; against the peace and dignity of the State."

Appellant's counsel on appeal filed an Anders ² brief, in which he suggested the only arguable contention on appeal was that the indictment was fundamentally defective. ³ He did not specify in what manner the indictment was lacking, but in fact averred that it conformed to all the requirements of an arson indictment under this Court's opinion in Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976). ⁴ Commendably, it was the State, in its reply brief on appeal, that first noted the potential problem with the instant indictment, viz: that it failed to allege that San Antonio is an incorporated city. However, the State argued, because the fact that San Antonio is an incorporated city is "a matter[] of which judicial notice is taken[,]" it "need not be stated in an indictment." Art. 21.18., V.A.C.C.P. ⁵ The court of appeals ruled that it could not take judicial notice of the incorporation of San Antonio in light of this Court's decision in Vasquez v. State, 665 S.W.2d 484 (Tex.Cr.App.1984), and thus, Art. 21.18, supra, could not serve to obviate the missing allegation. Finding the fact of incorporation to be an essential element of the offense of arson as defined in Sec. 28.02(a)(1), the court of appeals held its omission to be fatal to the indictment, and ordered the prosecution dismissed.

In its opinion on direct appeal in Vasquez v. State, 653 S.W.2d 492 (Tex.App.--Corpus Christi 1983), the court of appeals had taken judicial notice that Three Rivers is an incorporated city. In doing so, the court analogized to Bell v. State, 166 Tex.Cr.R. 340, 313 S.W.2d 606 (1958) and Payne v. State, 596 S.W.2d 911 (Tex.Cr.App.1980), in which this Court took judicial notice that Dallas and Houston were located in Dallas and Harris counties, respectively. Thus, the court of appeals found that failure to prove at trial that Three Rivers was an incorporated city was not fatal to the defendant's conviction for arson. On petition for discretionary review this Court found that the court of appeals had misapplied the holdings of Bell and Payne, both supra. ⁶ And then, sans authority, it held that the court of appeals "should not have taken judicial notice that Three Rivers is an incorporated city or town." 665 S.W.2d at 486.

The State now argues that, to the extent it holds that courts cannot judicially notice a particular city is incorporated, Vasquez, supra, should be overruled.

II.

Historically, municipalities in Texas have become incorporated in one of three ways. ⁷ From 1845 a city or town was incorporated only by way of a special charter granted by the Legislature. Where a city was granted such a charter, and the special act of the Legislature contained a provision expressly requiring that judicial notice be taken of its terms, or specified that the charter should have the force and effect of a public act, judicial notice of the charter and its terms was required. 35 Tex.Jur.3d Evidence Sec. 49, at 86-87; 39 Tex.Jur.2d Municipal Corporations Sec. 48, at 437; 17 Tex.Jur. Evidence Sec. 13, at 179-80.

In 1858 the Legislature promulgated the first general law pertaining to the incorporation of cities and towns. See Acts 1858, 7th Leg., p. 69, ch. 61; 4 Gammel's Laws of Texas (Gammel's) 941 (1898). Since then that initial scheme has gone through a great deal of evolution. See now V.A.C.S. Art. 961 et seq. and Art. 1133, et seq. See also, Interpretive Commentary following Tex. Const., Art. XI, Sec. 5. In Temple v. The State, 15 Tex.App. 304 (1883), the Court of Appeals held that courts could not take judicial notice of incorporation of a town or city that had incorporated through "the general laws upon the subject." The Court explained:

"And the reason for the rule as it obtains with us may be found in provisions of our law with regard to municipal corporations and the mode and manner of their creation. No special legislative act is required to create or legalize such corporations. Any town of two hundred inhabitants or any city may of itself become incorporated by complying with the general laws upon the subject. (Rev.Stats., Arts. 340 to 541 inclusive; Acts 17 Legislature, pp. 63, 115, 116, 117.) After an election has been held under the general laws, and 'corporation' is carried, all that is necessary to invest the town with all the rights incident to corporations under the law is that the county judge 'shall, within twenty days after the receipt of the returns, make an entry upon the records of the Commissioners' Court that the inhabitants of the town are incorporated,' etc. (Rev.Stats, Arts. 511 to 514 [See now Arts. 1136 to 1139, supra].) It could scarcely be expected that the courts should judicially know of all such and when they have been made and placed on the records of the County Commissioners' Court."

Id., at 313-14. See also Patterson v. The State, 12 Tex.App. 222 (1882); Bluitt v. State, 56 Tex.Cr.R. 525, 121 S.W. 168 (1909). Presumably this holding did not apply to judicial notice of those cities and towns incorporated via special charter, since in City of Houston v. Dooley, 40 Tex.Civ.App. 371, 89 S.W. 777 (Houston [1st] 1905), "judicial cognizance" was taken not only of the then current special charter of the city of Houston, but also of earlier, superseded charters of that city, as well as of the fact that Houston had "been an incorporated city for more than 40 years[.]" Id., 89 S.W. at 778. See also, Pence v. State, 110 Tex.Cr.R. 378, 9 S.W.2d 348 (1928).

The Home Rule Amendment to Art. XI, Sec. 5 of the Texas Constitution came in 1912, followed by enabling legislation in 1913. Acts 1913, 33rd Leg., p. 307, ch. 147. Now, "cities with populations over 5,000 might draw their own charters and include anything they wished not inconsistent with the general laws or the constitution." Interpretive Commentary, Tex. Const. Art. XI, Sec. 5, at 642. As part of the 1913 enabling act the Legislature promulgated what in essence may now be found at V.A.C.S., Arts. 1173 and 1174, which provisions read:

"Art. 1173. Certification

Upon adoption of any such charter or amendment to any existing charter as provided herein, the mayor or chief executive officer exercising like or similar powers, of any such city, as soon as practicable, after the adoption of any such charter or amendment, shall certify to the Secretary of State an authenticated copy under the seal of the city, showing the approval by the qualified voters of any such charter or amendment, and the Secretary of State shall thereupon file and record the same in a separate book to be kept in his office for this purpose.

Art. 1174. Registration

The city secretary of any such city or officer exercising like or similar powers, upon adoption and approval of any such charter or amendment thereof by the qualified voters as herein provided, shall record at length upon the records of the city, in a separate book to be kept in his office for such a purpose, any such charter, or amendment so adopted. When such charter or any amendment thereof shall be so recorded, it shall be deemed a public act and all courts shall take judicial notice of same and no proof shall be required of same...."

Early on at least one of the courts of civil appeals interpreted these provisions to establish an evidentiary predicate to the taking of judicial notice of the content of a Home Rule charter. Thus, in Pate v. Whitley, 196 S.W. 581, at 582 (Tex.Civ.App.--El Paso 1917, no writ), the court opined:

"As we construe this section, it means that the courts shall take judicial notice of the charter when it has been recorded as stated, and that no proof is necessary of the terms and provisions of the charter. We do not construe the statute as imposing judicial notice of the fact that the charter has been certified to the Secretary of State and that it has been by that officer filed and recorded and also recorded by the city secretary or other officer of the city exercising the powers of the city secretary. The Legislature surely did not intend that courts shall be charged with notice of facts of which they could not have knowledge without some evidence. We think it is a prerequisite to the taking of the judicial notice imposed by the act that the charter shall have been certified to the Secretary of...