Tholonaus Darrell Pomier v. The State of Texas--Appeal from 212th District Court of Galveston County
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Affirmed in Part as Reformed, Reversed and Remanded in Part, and Majority and
Concurring Opinions filed October 21, 2010
In The
Fourteenth Court of Appeals
NO. 14-09-00247-CR
THOLONAUS DARRELL POMIER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause No. 07CR1549
C O N C U R R I N G
O P I N I O N
This is an uncommon case: the charging instrument filed against appellant alleged
misdemeanor stalking under a prior statute; the charging instrument was filed in district
court—not county court; and appellant was convicted of and sentenced to 20 years in
district court for felony stalking—not misdemeanor stalking as alleged in the indictment.
The Court of Criminal Appeals has recently held that a district court is vested with
subject-matter jurisdiction over a charging instrument alleging a misdemeanor offense if
the instrument notifies the accused that the State intends to charge a felony. See Garza v.
State, No. 1761-08, 2010 WL 454942, at *3 (Tex. Crim. App. Feb. 10, 2010); see also
Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009).
Following
Kirkpatrick, the majority opinion in this case concludes that the district court was vested
with jurisdiction over appellant’s misdemeanor stalking offense. And because this Court
is bound by Kirkpatrick, I agree with the majority opinion’s disposition of appellant’s
jurisdictional argument. However, as a matter of constitutional jurisprudence, I concur to
express that Kirkpatrick’s holding runs afoul of the constitutional and statutory mandates
for district court jurisdiction.
A. Constitutional and Statutory Mandates For District Court Jurisdiction
Subject-matter jurisdiction is mandatory and cannot be judicially created or
conferred—this type of jurisdiction exists by reason of that authority vested in the court
by the state’s constitution and statutes. See Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.
Crim. App. 1980). Unless the authority of a court to perform a contemplated act can be
found in the Texas Constitution or laws enacted thereunder, that court is without
jurisdiction. Id. (quoting Ex parte Armstrong, 110 Tex. Crim. 362, 8 S.W.2d 674, 675–
76 (1928)). Further encompassed by subject-matter jurisdiction is the court’s authority to
carry the sentence or the judgment of the court into execution. Id. at 528.
Article V, section 8 of the Texas Constitution provides that district courts have
original jurisdiction in all criminal cases of the grade of felony. Tex. Const. art. V, § 8.
Furthermore, article 4.05 of the Texas Code of Criminal Procedure provides that district
courts have subject-matter jurisdiction over felonies, misdemeanors involving official
misconduct, and misdemeanor cases transferred to the district court under article 4.17 of
the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2005).
However, subject-matter jurisdiction over all misdemeanors of which exclusive
jurisdiction is not given to the justice court, and when the fine to be imposed exceeds
$500, is conferred upon the county courts by statute and the Texas Constitution. Tex.
Const. art. V, § 16; Tex. Code. Crim. Proc. Ann. art. 4.07.
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B. Kirkpatrick Improperly Confers
Subject-Matter Jurisdiction Over Misdemeanor Offenses to District Courts
The defendant in Kirkpatrick was charged with misdemeanor tampering with a
government record; however, the charging instrument was filed in a district court. 279
S.W.3d at 324–25. The Kirkpatrick court vested the district court with subject-matter
jurisdiction over the misdemeanor offense, reasoning:
[A]lthough the indictment properly charged a misdemeanor and lacked an
element necessary to charge a felony, the felony offense exists, and the
indictment’s return in a felony court put appellant on notice that the
charging of the felony offense was intended. . . Appellant had adequate
notice that she was charged with a felony.
Id. at 329. Under Kirkpatrick, a district court is vested with subject-matter jurisdiction
over a misdemeanor offense so long as the accused has notice that a felony is intended to
be charged. While the indictment serves two functions—it provides notice of the offense
to allow a defendant an opportunity to prepare a defense and serves to vest a court with
jurisdiction—Kirkpatrick confuses these distinct functions. Contrary to Kirkpatrick’s
reasoning, subject-matter jurisdiction does not relate to an accused’s right to notice. See
Garcia, 596 S.W.2d at 528 n.5 (quoting 15 Tex. Jur. 2d § 50 (1960)). Subject-matter
jurisdiction vests only upon the filing of a valid indictment in the appropriate court.
Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995). Notice that the State
intends to charge a felony does not vest a district court with subject-matter jurisdiction
over a misdemeanor.
See id.
By conferring subject-matter jurisdiction over a
misdemeanor to a district court merely when the accused has notice, Kirkpatrick
improperly bestows subject-matter jurisdiction to district courts outside the Texas
Constitution and the Code of Criminal Procedure. See Garcia, 596 S.W.2d at 527
(reasoning that subject-matter jurisdiction exists by reason of that authority vested in the
court by the Constitution and statutes).
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In the instant case, appellant was charged with misdemeanor stalking. A district
court’s jurisdiction is limited to felony cases, except for instances that do not apply here.
Tex. Const. art. V, § 8; Tex. Code Crim. Proc. Ann. art. 4.05. Thus, under the Texas
Constitution and the Code of Criminal Procedure, the district court was without subjectmatter jurisdiction.
Because the trial court had no jurisdiction over the charged
misdemeanor offense, any action taken by the trial court should be deemed void. See
Garcia, 596 S.W.2d at 528 n.5; see also Silva v. State, No. 01-02-01137-CR, 2003 WL
21805497, at *1 (Tex. App.—Houston [1st Dist.] Aug. 7, 2003, no pet.) (mem. op. on
reh’g, not designated for publication).
However, because this Court is bound by the
precedent set forth by the Court of Criminal Appeals in Kirkpatrick, I join the opinion of
this Court and respectfully concur only to address the unconstitutionality of Kirkpatrick.
/s/
Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Yates and Boyce (Yates, J. majority).
Publish — TEX. R. APP. P. 47.2(b).
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