JOE RUBIO, JR. AND DENNIS ZAMARRON v. THE STATE OF TEXAS--Appeal from 197th District Court of Cameron County

NUMBER 13-00-772-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

JOE RUBIO, JR. AND

DENNIS ZAMARRON, Appellants,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 197th District Court

of Cameron County, Texas.

O P I N I O N

Before Justices Dorsey, Ya ez, & Rodriguez

Opinion by Justice Dorsey

Appellants, Joe Rubio, Jr., and Dennis Zamarron, attempt to appeal from a judgment finding the Harlingen Police Officers Association (AHPOA@), a corporation, guilty of violating section 252.094 of the Texas Election Code. On September 13, 2000, the HPOA was indicted for two felony counts of violating the Texas Election Code. Count 1 alleged in part that the HPOA made

an unlawful political contribution or political expenditure, to wit . . . [HPOA] contributed $487.13 to the campaign of HUMBERTO ZAMORA a political candidate for the public office of Mayor of Harlingen. Said political contribution or political expenditure was made through the officers of . . . [HPOA], to wit: JOE RUBIO, President of . . . [HPOA]. . . .

Count 2 alleged in part that the HPOA made

an unlawful political contribution or political expenditure, to wit . . . [HPOA] contributed $100.00 to the campaign of JIM MATTOX a political candidate for the public office of Attorney General of the State of Texas. Said political contribution or political expenditure was made through the officers of . . . [HPOA], to wit: DENNIS ZAMARRON, Vice President of . . . [HPOA]. . . .

A plea-bargain agreement was reached which stated that: (1) the HPOA will pay a $3,000 fine, plus court costs; (2) appellant, Dennis Zamarron, will accept a thirty-day suspension without pay, will resign as president of the HPOA and no longer hold office in the HPOA, and will resign as a police officer with the Harlingen Police Department effective November 1, 2000; (3) appellant, Joe Rubio, Jr., will accept a thirty-day suspension without pay, agree that he will no longer hold office in the HPOA, and will resign as a police officer with the Harlingen Police Department effective January 2, 2001; and (4) the State agreed that by execution of this agreement by all parties the State will not seek any further prosecutions of the appellants for any election code violation subject to this investigation.

On September 21, 2000, the HPOA, through its agent, appellant Dennis Zamarron, pleaded nolo contendere to the offense. The trial court followed the plea bargain and assessed a $3,000 fine against the HPOA.

By two issues appellants argue that: (1) the trial court=s judgment, as applied to them, is void for lack of jurisdiction; and (2) the trial court should have granted a new trial and vacated the order that assessed punishment against them. We dismiss the appeal for want of jurisdiction.

Jurisdiction

An appellate court has the obligation to determine its own jurisdiction. Glass v. Sponsel, 916 S.W.2d 25, 26 (Tex. App.BHouston [1st Dist.] 1995, no writ); Welch v. McDougal, 876 S.W.2d 218, 220 (Tex. App.BAmarillo 1994, writ denied). In criminal cases the presentment of an indictment invests the trial court with jurisdiction of the cause. Tex. Const. art. V, ' 12(b). The filing of the indictment is essential to vest the trial court with jurisdiction over a felony offense. See Ex parte Dobbs, 978 S.W.2d 959, 960 (Tex. Crim. App. 1998); Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995). The accused=s appearance alone cannot confer the trial court with criminal jurisdiction over the person; rather, jurisdiction 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. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980); In re Rubio, 55 S.W.3d 238, 241 (Tex. App.BCorpus Christi 2001) (orig. proceeding).

Here it is undisputed that appellants were not indicted, and therefore, the trial court was not vested with jurisdiction over them. In re Rubio, 55 S.W.3d at 241. Further appellants could not agree to subject themselves to the trial court's jurisdiction, absent a waiver of indictment. Jurisdiction in a criminal proceeding cannot be conferred by agreement; this type of jurisdiction exists by reason of the authority vested in the court by the Constitution and statutes. Garcia, 596 S.W.2d at 527; In re Rubio, 55 S.W.3d at 241.

We must still examine whether the trial court attempted to exercise jurisdiction over appellants when it accepted the plea bargain. We note that the judgment of conviction against HPOA made no reference to appellants as defendants, and it did not require them to take any action. In order to determine whether appellants were parties to the plea agreement we must examine the nature of plea bargain agreements. Plea bargaining is defined as:

a process which implies a preconviction bargain between the State and the accused whereby the accused agrees to plead guilty or nolo contendere in exchange for a reduction in the charge, a promise of sentencing leniency, a promise of a recommendation from the prosecutor to the trial judge as to punishment, or some other concession by the prosecutor that he will not seek to have the trial judge invoke his full, maximum implementation of the conviction and sentencing authority he has, i.e., it is the process where a defendant, who is accused of a particular criminal offense, and his attorney, if he has one, and the prosecutor enter into an agreement which provides that the trial on that particular charge not occur or that it will be disposed of pursuant to the agreement between the parties, subject to the approval of the trial judge. Put another way, plea bargaining is the process by which the defendant in a criminal case relinquishes his right to go to trial in exchange for a reduction in charge and/or sentence.

In re Rubio, 55 S.W.2d at 241 (citing Perkins v. Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987) (orig. proceeding) (citations omitted, emphasis added).

Thus the definition contemplates that only a defendant and the State may enter into a plea bargain. As previously noted appellants were not the defendants in this case, and therefore, by definition, their agreement to resign from their employment or as HPOA officeholders cannot constitute a plea-bargain agreement. Accordingly we find that appellants' agreement to resign as police officers and HPOA officeholders was not a part of the plea agreement and may not be enforced as such. See and compare In re Rubio, 55 S.W.3d at 242. Because appellants' agreement to resign was not a part of the plea agreement we hold that the trial court=s decision to follow the plea agreement did not constitute an exercise of jurisdiction over appellants.

We dismiss the appeal for want of jurisdiction.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 11th day of April, 2002.