Henry Lee Moore v. State ( 2002 )

NO. 07-01-0477-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

NOVEMBER 22, 2002

______________________________



HENRY LEE MOORE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 43,982-A; HONORABLE DAVID GLEASON, JUDGE

_______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J. ⁽¹⁾

Upon a plea of not guilty, appellant Henry Lee Moore was convicted by a jury of unlawful possession of a firearm by a felon, enhanced, and punishment was assessed at 45 years confinement. In presenting this appeal, counsel has filed an Anders ⁽²⁾ brief in support of a motion to withdraw. Based upon the rationale expressed herein, the motion to withdraw is granted and the judgment is affirmed.

In support of his motion to withdraw, counsel has certified that he has diligently reviewed the record and, in his opinion, the record reflects no reversible error or grounds upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Thus, he concludes the appeal is frivolous and without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se brief if he desired to do so. Appellant filed a pro se brief; however, the State did not favor us with a brief.

Appellant and the complaining witness are related by marriage and at the time of the incident, appellant was living with complainant in his duplex. Complainant called police officers on April 29, 2001, to report that appellant had been drinking and that shots had been fired. Several police officers responded to the call and after investigating at the scene determined that appellant was not drunk and that no shots had in fact been fired. However, upon questioning by the officers, appellant admitted possessing a pistol that was discovered in a bag in a closet and acknowledged that it was unlawful for him to possess a firearm because he was on parole. Pursuant to the wishes of complainant that he did not want appellant in his home, a trespass warning was issued and appellant was asked to gather his belongings and leave. He was later charged with unlawful possession of a firearm ⁽³⁾ and pursuant to a not guilty plea, was convicted by a jury. During the punishment phase appellant plead true to both enhancement paragraphs and was sentenced to 45 years confinement.

Appellant's parole officer testified that appellant was released on parole on July 23, 1999, and would remain on parole until July 25, 2007. Section 46.04(a)(1) of the Texas Penal Code prohibits a convicted felon from possessing a firearm after conviction and before the fifth anniversary of his release from parole. Although the defense presented evidence from complainant's half-brother that several months prior to the incident, complainant was in possession of the pistol and claimed he needed it for protection, the evidence is sufficient to establish the elements of the charged offense.

Counsel presents one arguable issue by which he asserts that appellant was denied effective assistance of counsel in the cross-examination of the complaining witness when the trial court refused to allow inquiry into his arrest and conviction for misdemeanor possession of marihuana because it was not a crime involving moral turpitude as required by Rule 609 of the Texas Rules of Evidence. Rule 609 provides that for impeachment purposes, evidence that a witness has been convicted of a crime is admissible if the crime was a felony or involved moral turpitude and its probative value outweighs its prejudicial effect. Pursuant to the State's motion in limine which was granted, the court ruled that prior to questioning complainant about prior convictions that were not felonies or did not involve moral turpitude, counsel should approach the bench. While cross-examining complainant, counsel approached the bench to discuss prior convictions. The court ruled that a conviction for possession of marihuana was inadmissible.

Exclusion of inadmissible testimony does not render defense counsel's performance ineffective. See Ybarra v. State, 890 S.W.2d 98, 113 (Tex.App.-San Antonio 1994, pet. ref'd). In Roliard v. State, 506 S.W.2d 904, 905 (Tex.Cr.App. 1974), the Court found no error in the trial court's limitation of cross-examination regarding the witness's use of marihuana for purposes of impeachment. The Court noted that "[o]nly convictions of a felony or offenses involving moral turpitude are available for . . . impeachment." Id. Thus, defense counsel's failure to cross-examine complainant regarding a misdemeanor conviction for possession of marihuana did not amount to ineffective assistance of counsel. See also In re Lock, 54 S.W.3d 305, 311 (Tex. 2001) (holding that it could not conclude that possession of a controlled substance was a crime of moral turpitude per se in an action to determine whether an attorney is unfit to practice law).

We have also made an independent examination of the entire record to determine whether there are any other arguable grounds which might support this appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). We have found no nonfrivolous issues and agree with counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Appellant raises ineffective assistance of appellate counsel by his pro se brief and requests that we set aside the Anders brief and appoint new counsel. However, having determined that this appeal is frivolous, appellant is not entitled to new counsel. Penson, 488 U.S. at 80. See also McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, 436-37, 108 S. Ct. 1895, 1901, 100 L. Ed. 2d 440 (1988) (holding that counsel is under an ethical obligation to refuse to prosecute a frivolous appeal).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

3. Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon Supp. 2003).

tempt to construe the issue presented by Appellant. Appellant contends the trial court abused its discretion by refusing to grant her motion to dismiss based on her assertion that the State’s indictment “failed to allege the commission of a crime.” On the one hand, if we construe that issue as contending the indictment failed to allege the commission of a felony, then we must address certain jurisdictional issues, including the waiver of indictment defects. On the other hand, if we construe that issue as contending the indictment failed to allege the commission of any offense (i.e. a crime), then we are faced with a different set of considerations, i.e., whether Appellant would have been entitled to a directed verdict of acquittal under any construction of the indictment. Based upon a reading of the motion to dismiss, the arguments of counsel, and the relief requested, it is apparent that Appellant is contending that she is entitled to a dismissal of the indictment because the allegations contained in the indictment, even if true, failed to allege the commission of an offense. With this construction in mind, we will first address the issue of the trial court’s subject-matter jurisdiction before addressing Appellant’s contention that the indictment failed to allege the commission of an offense.

  II.       Jurisdiction of the Trial Court

           Where, as here, the record itself raises a question as to the trial court’s subject-matter jurisdiction, we must address that issue, sua sponte, before proceeding to any other issue. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996), overruled on other grounds, State v. Medrano, 67 S.W.3d 892, 903 (Tex.Crim.App. 2002)(threshold issue of jurisdiction must be disposed of before addressing substantive issues because subject-matter jurisdiction cannot be conferred by agreement of the parties, but must be vested in a court by constitution or statute). Where there is no jurisdiction, the power of the court to act is “as absent as if it did not exist”; Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Crim.App. 1980) (quoting Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Crim.App. 1964)), and any order or judgment entered by a court lacking jurisdiction is void. Nix v. State, 65 S.W.3d 664, 668 (Tex.Crim.App. 2001); Gallagher v. State, 690 S.W.2d 587, 589 n.1 (Tex.Crim.App. 1985).

          Under § 37.10 of the Penal Code, a person commits the offense of tampering with a governmental record if he or she “knowingly makes a false entry in, or false alteration of, a governmental record.” Tex. Penal Code Ann. § 37.10(a)(1) (Vernon Supp. 2007). Subsection (c)(1) classifies the above-quoted offense as a Class A misdemeanor. However, the offense becomes a state jail felony if the actor’s intent is to defraud or harm another, § 37.10(c)(1); and it becomes a third-degree felony if the governmental record was (1) a public school record, report or assessment instrument, or (2) license, permit, seal, title, letter of patent, or similar document issued by the government. See § 37.10(c)(2). Therefore, for a defendant to be charged and convicted of felony tampering with a governmental record, the State must additionally allege and prove that either the defendant intended to defraud or harm another, or the governmental record was of the type described.

          It is well settled that a constitutionally sufficient indictment is essential to vest a district court with jurisdiction in a criminal case. See Tex. Const. art. V, § 12(b); State v. Smith, 957 S.W.2d 163, 165 (Tex.App.–Austin 1997, no pet.). The indictment in this case alleges that Appellant “knowingly [made] a false entry in a governmental record.” The indictment does not allege that, when Appellant presented her surety bond and/or oath, she intended to defraud or harm another. Nor does the indictment allege the governmental record was of the type necessary to make the offense a third-degree felony. Although the caption of the indictment describes the punishment grade as “SJF Degree Felony,” the caption is not a part of the indictment but mere surplusage. Adams v. State, 222 S.W.3d 37, 53 (Tex.App.–Austin 2005, pet. ref’d); Thibodeaux v. State, 628 S.W.2d 485, 487 (Tex.App.–Texarkana 1982, no pet.). See 23 Tex. Jur. 3d Criminal Law § 2650 (2001). Thus, we conclude the indictment in this case alleged a Class A misdemeanor offense of tampering with a governmental record. See § 37.10(a)(1).

          District courts have subject-matter jurisdiction only over felonies, misdemeanors involving official misconduct, and misdemeanor cases transferred to the district court under article 4.17 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2005). In the instant case, the indictment does not allege a felony or other offense for which a district court has jurisdiction. Thus, on its face, the indictment fails to satisfy the constitutional requirement of subject-matter jurisdiction. See Teal v. State, 239 S.W.3d 172, 181 (Tex.Crim.App. 2007). However, our inquiry does not end there.

          The presentment of an indictment, signed by the grand jury foreman and presented to the district court, which alleges that a person committed a misdemeanor offense vests the district court with jurisdiction if the allegations are clear enough that the accused can identify the offense alleged. Id. at 179-81. (indictment charging defendant with misdemeanor was sufficient to vest the district court with subject-matter jurisdiction where indictment was capable of being construed as intending to charge a felony or a misdemeanor for which the district court has jurisdiction). In Teal the indictment charged the defendant with hindering apprehension. The 9^th Court of Appeals vacated the defendant’s felony conviction after concluding that the district court lacked subject-matter jurisdiction because the indictment failed to allege the additional statutory conditions necessary to elevate the misdemeanor offense to a felony grade offense. Specifically, the indictment failed to allege that Teal had knowledge that the person harbored or assisted was facing arrest, charge, or had been convicted of a felony. After granting the State’s petition for discretionary review, the Court of Criminal Appeals reversed the Court of Appeals holding that an indictment, although defective for failing to allege the conditions that would elevate the offense to a felony, vests the district court with subject-matter jurisdiction if “it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective.” Id. at 181. The Court reasoned that the failure to allege the conditions necessary to elevate the offense to a felony were substantive defects, subject to waiver, that did not render the indictment “void.” Id. at 178.

          And that brings us back to our construction of Appellant’s motion to dismiss. Having construed Appellant’s motion to dismiss as a motion that did not object to a defect in the indictment (i.e., failure to allege a felony offense), we find that Appellant waived that objection. Tex. Code Crim. Proc. Ann. art. 1.14(b). Our conclusion is further supported by Appellant’s representation during oral arguments that it was a conscious decision not to raise the misdemeanor versus felony argument.

II.       Failure to Allege the Commission of an Offense

          Appellant contends that even if the entry alleged (the representation that “[Appellant had] property in this State liable to execution worth forty thousand dollars”) were untrue, such entry would not constitute a false entry in a governmental record because the representation was not required by the Code of Criminal Procedure article governing the making of a surety bond. Alternatively, she argues that the entry could not have defrauded or harmed the person to whom it was given, i.e., the Childress County Sheriff, because the sheriff knew it was false when made.

          Appellant cites no authority supporting her contentions. Without same, the issue is inadequately briefed and, therefore, waived. See Tex. R. App. P. 38.1(h); Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000).

Conclusion

          Appellant’s issue is overruled and the trial court’s judgment is affirmed.  

                                                                           Patrick A. Pirtle

                                                                                 Justice

Do not publish.