Stine v. State

• Decision Date: 10 May 1995
• Docket Number: No. 044-94,044-94
• Citation: 908 S.W.2d 429
• Parties: Aaron Wade STINE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 429

908 S.W.2d 429

Aaron Wade STINE, Appellant, v. The STATE of Texas, Appellee.

No. 044-94.

Court of Criminal Appeals of Texas.

May 10, 1995.

Phil Robertson, court appointed on appeal, Clifton, for appellant.

Andy J. McMullen, Dist. Atty., & Ben L. Stool, Asst. Dist. Atty., Hamilton, Robert Huttash, State's Atty., Austin, for State.

EN BANC.

OPINION ON THE STATE'S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was indicted for the felony offense of attempted murder, V.T.C.A. Penal Code, §§ 15.01 and 19.02, alleged to have been committed on or about the 17TH day of April 1992, in Bosque County. Appellant was convicted by a jury, of the lesser included offense of aggravated assault on the 26TH day of January, 1993, in the 220TH District Court of Bosque County. After appellant pled true to one enhancement count, the jury assessed punishment at twenty years confinement in the Texas Department of Criminal Justice--Institutional Division.

The Tenth Court of Appeals reversed, and remanded the case for retrial. Stine v. State, No. 10-93-038CR (Tex.App.--Waco, delivered November 3, 1993). The court of appeals held that Texas Constitution art. V, § 7 is considered jurisdictional and that parties to a lawsuit cannot by agreement confer jurisdiction where it does not exist. ¹ We granted the State's petition for discretionary review to decide whether the court of appeals erred in holding that the provision contained in Tex. Const., art. V, § 7, requiring the trial court to conduct its proceedings only at the county seat at which the case is pending, cannot be waived by agreement of the parties. ²

I. SUMMARY OF PERTINENT FACTS

On the first day of trial, the prosecution presented fourteen witnesses; however the complaining witness, Johney Verzwyvelt, was unable to appear in court because he was hospitalized. All of the first day testimony occurred in the courthouse in Meridian, which is the county seat of Bosque County. At the end of the day, the parties agreed to recess and reconvene the next day in a hospital in Clifton so that the testimony of Mr. Verzwyvelt and Dr. Mark Campbell could be heard. Appellant's lawyer agreed that taking the doctor's testimony at the hospital would be the "most efficient way to do it." The next day, the court, jurors, attorneys and appellant met at the Goodall-Witcher Hospital and heard the testimony of Mr. Verzwyvelt and Dr. Campbell. There was no objection made to the court conducting this portion of the proceedings outside the county seat. The remainder of the Court's proceedings were held in the courthouse at Meridian.

II. ANALYSIS OF CLAIM

The Texas Supreme Court has held that art. V, § 7 of the constitution requires that a judge cannot hold a regular term of his court at any place other than the county seat of the county. Turner v. Tucker, 113 Tex. 434, 258 S.W. 149 (1924); Whitner v. Belknap, 89 Tex 273, 34 S.W. 594 (1896); Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co., 88 Tex. 468, 27 S.W. 100 (1894). In Lyons-Thomas, the Court stated the general rule that "a judge of the district court in this state has no power to adjudicate the rights of litigants except at the times and places prescribed by law for holding court, unless the authority is conferred by statute." Lyons-Thomas, 27 S.W. at 109.

Art. V, § 7 of the Texas Constitution requires that a district court "conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law." Tex. Const., art. V, § 7. In interpreting statutes, it is the practice of this court to concentrate on the literal text of a statute in order to ascertain its meaning. It is only when the literal text is unclear or would lead to absurd results that we would utilize additional means to reach the statutory intent. Hernandez v. State, 861 S.W.2d 908, 909 (Tex.Cr.App.1993); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). This Court should be guided by the same principle when interpreting constitutional provisions. If the words in Art. V, § 7 are given their plain meaning, it is evident that this is a jurisdictional mandate that must be followed. There is no doubt that Tex. Const., art. V, § 7 dictates that the court shall conduct its proceedings in the county seat unless otherwise provided by law.

It is also fundamental that the parties of a suit can neither confer nor waive jurisdiction by agreement or consent. Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993). In applying the facts of this case to the enunciated general rule, the fact that appellant failed to make a timely objection to the court proceedings being held in a hospital that was located outside of the county seat is irrelevant, and his objection was not waived. A lack of jurisdiction is fundamental error, and is appealable at any time, even if it is raised for the first time on appeal. Under these circumstances, there was no waiver of appellant's objection. Marin, 851 S.W.2d at 280.

The State argues that in the event that error occurred in the lower court, the conviction of appellant should be affirmed because the error was harmless. Under Tex.R.App.Pro. 81(b)(2), an appellate court must reverse the proceedings of the lower court, unless the appellate court finds, beyond a reasonable doubt, that the error made no contribution to the conviction or to the punishment. Because the language of art. V, § 7 is clear and unambiguous, we interpret it to be mandatory, non-waivable and thus no harm analysis need be done. Sodipo v. State, 815 S.W.2d 551, 554 (Tex.Crim.App.1991).

If court proceedings were allowed to be held wherever the judge or parties thought it necessary, not only would the Texas Constitution be violated, but the general public would be greatly harmed because it would lose the right to a public trial provided by law. Defendants have the right to a speedy and public trial, and the constitutional requirement that court proceedings occur in the county seat is a fundamental way to keep our most formal adversarial process open and public. Tex. Const. art. I, § 10; Tex.Code of Crim.Proc.Ann. arts. 1.05, 1.24. Unquestionably, the public has the right to know where court proceedings will be held, and furthermore, it has the right to be present at any or all of such public proceedings, as the law may provide.

It may be the case that it is too burdensome for individuals to actually appear in court; however the legislature has made provisions for such situations. The Texas Code of Criminal Procedure art. 39.02 provides that a defendant may request to take the deposition of a witness.

III. RESPONSE TO DISSENT

The dissent opines that V.T.C.A. Gov't Code, § 21.001(b) and Tex.R.Crim.Evid. 610(a) provide authority for the trial court to allow portions of the trial to take place in a hospital away from the courthouse and not in the county seat. However these provisions deal with a trial court's authority to control the manner, mode and order of the conduct of the trial, but they do not address the location of trial proceedings. As discussed above, Tex. Const., art. V, § 7 provides for the location of court proceedings, i.e. "at the county seat of the county in which the case is pending[.]" The dissent also suggests that an appropriately "liberal" interpretation of art. V, § 7 would lead to a common sense approval of having the proceedings in the hospital as occurred in the instant cause; however such "liberalism" would likewise allow trial proceedings to occur literally anywhere in the county, state or United States, or even anywhere in the world.

In footnote 4, the dissent also suggests that this Court is not exercising common sense in concluding that the trial court erred in conducting a portion of the trial in a hospital away from the courthouse and not in the county seat. We do not conclude that the "sense" of allowing trial proceedings to occur literally anywhere a trial court wants is any more "common" than the sense in abiding by the Texas Constitution's provisions in art. V, § 7, i.e. in conducting trial proceedings "at the county seat of the county in which the case is pending[.]"

Since the trial court did not have the power to do what it did in violation of the Texas Constitution, appellant did not waive any right to later complain about it, as the above-discussed art. V, § 7 provisions are absolute systemic requirements which are not forfeitable per Marin v. State, 851 S.W.2d 275, 279-80. Thus regardless of whether it is the State or the defendant which is seeking to conduct proceedings in contravention of art. V, § 7, the trial court is precluded from convening trial proceedings in a hospital away from the county seat.

There are specific statutory provisions for conducting court proceedings in places other than "the county seat of the county in which the case is pending[.]" These include upon motion for change of venue pursuant to the provisions of Chapter 31 of the Texas Code of Criminal Procedure. Also, V.T.C.A. Gov't Code, §§ 24.105 and 24.381 specifically provide for court proceedings in Texarkana, which is not the county seat of Bowie County. These are examples of the "except as otherwise provided by law" provision of art. V, § 7.

The dissent also states that the record does not reflect that the trial court actually "adjudicated" any of the litigants' rights except in the courthouse in the county seat. However, the record clearly reflects, and it is not even disputed, that trial proceedings, including testimony from witnesses and the identification of physical evidence, took place at the hospital which was not in the county seat. Thus the litigants' rights to present testimony and other evidence certainly were "adjudicated" at the hospital.

The dissent in footnote 7 states that it was within the trial court's discretion to decide that the State's need to present its evidence outweighed appellant's right to have the proceedings conducted in accordance with the requirements...