Kelley v. State

• Decision Date: 07 November 1983
• Docket Number: No. 05-82-00514-CR,05-82-00514-CR
• Citation: 669 S.W.2d 329
• Parties: Carolyn Kate KELLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 329

669 S.W.2d 329

Carolyn Kate KELLEY, Appellant, v. The STATE of Texas, Appellee.

No. 05-82-00514-CR.

Court of Appeals of Texas,

Dallas.

Nov. 7, 1983.

Richard Corbitt, Lawrence B. Mitchell, Dallas, for appellant.

Henry Wade, Dist. Atty., R.K. Weaver, Asst. Dist. Atty., for appellee.

Before STOREY, WHITHAM and ROWE, JJ.

ROWE, Justice.

The State's motion for rehearing is granted. Our former opinion is withdrawn, and the following is now our opinion.

Appellant appeals a conviction for theft for which the court assessed punishment at 180 days in jail pursuant to a negotiated plea bargain agreement. All proceedings were held before a magistrate appointed pursuant to TEX.REV.CIV.STAT.ANN. art. 1918c (Vernon Supp.1982-1983). Under TEX.CODE CRIM.PROC.ANN. art. 44.02 (Vernon 1979), the trial court granted appellant permission to appeal. In her sole ground of error appellant contends that "the tribunal which conducted the hearing Appellant was initially indicted for the felony offense of theft of property of a value of at least $200.00 but less than $10,000.00. The indictment was returned to Criminal District Court No. 4 of Dallas County, and thereafter duly transferred to the Criminal District Court of Dallas County. Thus, the Criminal District Court of Dallas County had jurisdiction over the case pursuant to Article V, Section 8 of the Constitution of the State of Texas. Under a general order entered by the Criminal District Court of Dallas County pursuant to article 1918c, the case was referred to the Magistrate's Court of Dallas County.

                and entered judgment against appellant in the pending cause was improperly constituted in violation of the Constitution of the State of Texas."   Because the record discloses that appellant's application for probation made at the punishment phase of the proceedings was acted upon solely by a magistrate, not empowered under Article 1918c to deny probation by his own decree, we sustain appellant's ground of error.  Accordingly, we reverse and remand
                

When the magistrate called the case to trial the State moved to reduce the offense to the lesser included offense of theft of property of a value of more than $20.00 but less than $200.00, a misdemeanor. The State's motion was granted and approved by the magistrate. Before the taking of the plea, appellant executed a waiver of her right to trial by jury which was consented to and approved by the magistrate. Appellant signed a judicial confession in which she waived the appearance, confrontation and cross-examination of witnesses and consented to the introduction of testimony orally, by affidavits, by written statements of witnesses and by other documentary evidence. The magistrate signed an order approving appellant's waiver, consent and judicial confession. The plea bargain agreement provided that in return for a plea of guilty appellant would receive a sentence of confinement in the Dallas County Jail of 180 days for a misdemeanor with the right to serve the jail confinement on the weekends. Appellant applied for probation. The magistrate signed an order convicting appellant and assessing a punishment of 180 days' confinement in the Dallas County Jail. This order also denied appellant's application for probation. The judge of the Criminal District Court of Dallas County, on the same day, signed a final judgment. That judgment reads:

The Defendant having been indicted in the above entitled and numbered cause for the felony offense of Theft of property of the value of $200 or more but less than $10,000, a Third-Degree Felony, as charged in the indictment.

and this cause being this day called, the State appeared by her assistant Criminal District Attorney Charlie Mitchell, and the Defendant Carolyn Kate Kelley, appeared in person and his counsel Robert Cady, also being present and both parties announced ready and the Defendant in person and in writing in open Court having waived his right of trial by jury, such waiver being the consent and approval of the Court and now entered of record on the minutes of the Court and such waiver being with the consent and approval of the Criminal District Attorney of Dallas County, Texas, in writing, signed by him, and filed in the papers of this cause before the Defendant entered his plea herein, the Defendant was duly arraigned and in open Court pleaded guilty to the charge contained in the indictment; thereupon the Defendant was admonished by the Court of the consequences of the said plea and the Defendant persisted in entering said plea, and it plainly appearing to the Court that the Defendant is mentally competent and that he is uninfluenced in making said plea by any consideration of fear, or by any persuasion, or delusive hope of pardon prompting him to confess his guilt, the said plea was accepted by the Court and is now entered of record as the plea herein of the Defendant. The Defendant in open Court, in writing, having waived the reading of the indictment, the appearance, confrontation, and cross-examination of witnesses, and agreed that the evidence may be stipulated and consented IT IS THEREFORE ADJUDGED BY THE COURT, that the said Defendant is guilty of the offense of Theft of property of the value of $20 or more but less than $200, a Class "A" Misdemeanor, as included in the indictment.**

to the introduction of testimony by affidavits, written statements of witnesses and any other documentary evidence, and such waiver and consent having been approved by the Court in writing and filed in the papers of the cause; and, the Court having, heard the Defendant's waiver of the reading of the indictment, the Defendant's plea thereto, the evidence submitted, and the argument of counsel, is of the opinion from the evidence submitted that the Defendant is guilty as charged.

as found by the Court, that the said Defendant committed said offense on the 14th day of September, 1981, that the punishment is hereby assessed at 180 Days confinement in the County Jail of Dallas County, Texas, that the Defendant be punished in accordance with same and that the State of Texas do have and recover of the said Defendant all costs in this prosecution expended, for which execution will issue.

THEREUPON the said Defendant was asked by the Court whether he had anything to say why said sentence should not be pronounced against him, and he answered nothing in bar thereof, and it appearing to the Court that the Defendant is mentally competent and understanding of the English language, the Court proceeded in the presence of said Defendant, his counsel also being present, to pronounce sentence against him, as follows:

IT IS THE ORDER OF THE COURT that said Defendant, who has been adjudged to be guilty of Theft of property of the value of $20 or more but less than $200, a Class "A" Misdemeanor, as included in the indictment.**

and whose punishment has been assessed by the Court at confinement in the County Jail of Dallas County, Texas, for 180 Days be confined by the Sheriff of Dallas County, Texas, immediately, in said County Jail of Dallas County for 180 Days,, [sic] and court costs of $68.00 in accordance with the provisions of the law of said State, and the said Defendant is remanded to jail until said Sheriff can obey the direction of this sentence.

It is further ADJUDGED and DECREED by this Court that the sentence pronounced herein shall begin this date, and that the Defendant is granted credit for time served beginning on date of 4/16/82--Defendant to Serve Time on Consecutive Weekends.

It is noteworthy that while this judgment expressly adopts most of the magistrate's rulings, it fails to refer in any way to appellant's application for probation. There is no indication in the judgment that the district court judge ever considered the matter of probation.

With the description of the proceedings below before us, we consider first whether a magistrate appointed pursuant to Article 1918c is a court or only a surrogate for a district court.

A court is an instrumentality of sovereignty, the repository of its judicial power, with authority to adjudge as to the rights of person or property between adversaries. The presence of a judge or judges is necessary as an essential element of a court. A "court" was defined by Bacon to be "an incorporeal being, which requires for its existence the presence of the judges or a competent number of them."

Mengel Box Co. v. Fowlkes, 135 Tenn. 202, 186 S.W. 91, 92 (1916). The State of Texas, as sovereign, created district courts, and provided for judges of those courts, in Article V, Sections 1 and 7 of its Constitution and placed its judicial power in all criminal cases of the grade of felony in those district courts. TEX. CONST. art. V, § 8. Accordingly, we hold that magistrates appointed When the matter of probation is placed before a district court judge, he may dispose of it by granting probation "when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby...." TEX.CODE CRIM.PROC.ANN. art. 42.13, § 3 (Vernon Supp.1982-1983). The question then arises whether judicial decisions concerning "the ends of justice," and "the best interests of the public" and the "best interests ... of the defendant" required by Article 42.13 § 3 may be made by a surrogate. We conclude that judicial decisions concerning "the ends of justice" and "the best interests of the public" and "the best interests ... of the defendant" required by Article 42.13 § 3 cannot be left to a surrogate under the Constitution of the State of Texas. Article V, Section 1 of the Constitution of Texas provides:

pursuant to Article 1918c are neither courts nor judges, but only individuals possessed of certain qualifications appointed to perform certain duties for instrumentalities of the State of Texas that are, indeed, true courts. Accordingly, we conclude that the magistrate is no more than a...