Ex parte Darryll KNIGHT, Appellant
No. 01-94-01152-CR
Court of Appeals of Texas, Houston (1st Dist.)
May 11, 1995
Opinion Overruling Motion for Rehearing Aug. 24, 1995
Discretionary Review Refused Nov. 8, 1995.
No And Insufficient Evidence of Negligence Discussion
Wal-Mart‘s third and fourth point of error is that there is no evidence, or insufficient evidence to support a finding of negligence. Even though this was a premises defect case, the case was submitted on a negligence charge without any objection by either party, and no objection has beеn made to the method of submitting the case on this appeal. Therefore we need not decide whether this form of submission is in error, and we do not do so. Error in the charge must be preserved by distinctly designating the error and the grounds for the objection.
It seems well settled in this State that where no objection is made to a defective submission of а controlling issue constituting a component element of a ground of recovery or a defense and a judgment is rendered thereon, such judgment will not be reversed because the failure to object is considered as a waiver of the defective submission of such issue. Allen v. American National Insurance Company, 380 S.W.2d 604, 609 (Tex.1964).
Wal-Mart does оbject that there is no evidence or insufficient evidence to support the verdict. The supreme court has stated the standard by which we review a factual sufficiency point: we assess all the evidence and reverse for a new trial only if the challenged finding is so against the great weight and preponderance of the evidеnce as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).
... it is important to remember that this court is not jury number two. Whether this court, if it were the original factfinder, would have found for one side or the other is immaterial. A jury is this state has great power. Jurors are “the sole judges of the credibility of the witnesses and the weight to be given to their testimony.”
We agree with Wal-Mart that there is conflicting evidence in the case, and there would have been evidence to support a verdict for Wal-Mart had a jury so found. But they didn‘t. And, after having reviewed the record, we find there is legally and factually sufficient evidence to support the verdict the jury did render. Appellant‘s points of error three and four are overruled.
The judgment is affirmed.
Stanley G. McGee, Angleton, for appellant.
Jerome Aldrich, David Bosserman, Angleton, for appellees.
Before TAFT, COHEN and MIRABAL, JJ.
OPINION
TAFT, Justice.
Appellant, Darryll Knight, appeals the trial court‘s denial of the relief requested in his pretrial petition for writ of habeas corрus. This case addresses the effect of a justice court‘s dismissal of a complaint upon a defendant‘s right to obtain a dismissal with prejudice in district court for delay by the State in presenting an indictment or information. We affirm.
Summary of Facts
By complaint filed in the justice of the peace court, appellant was alleged to have
On October 25, 1994, appellant filed аn application for writ of habeas corpus in the District Court of Brazoria County. In his application, appellant stated that he was charged by complaint pending in the justice of the peace court. Appellant complained of the denial of his sixth amendment right to a speedy trial and the failure of the State to present an indictment or information against him at the next term of the court after his commitment or admission to bail pursuant to
On October 31, 1994, a hearing was held on appellant‘s application for writ of habeas corpus. At appellant‘s request, the trial court took judicial notice that the terms of the Brazoria County Grand Jury were from October 1, 1993, through March 31, 1994, and from April 1, 1994, through September 30, 1994. The State agreed and stipulated that no indictment against appellant had been returned through the time of the hearing.
Counsel for appellant argued that chapters 28 and 32 of the Code of Criminal Procedurе mandated that charges against appellant be dismissed with prejudice. The State objected to the grant of writ before being allowed to present evidence or show cause why the indictment had not been presented. Defense counsel acknowledged a variety of good reasons for delay in obtaining an indictment, but he аrgued the provision was mandatory, regardless of any such reasons. The State offered the docket sheet from the justice court as evidence that the complaint had been dismissed earlier that day in the justice court, thereby rendering the issue moot. Defense counsel argued that denial of appel-
The trial court commented that it understood petition for discretionary review had been granted on the case relied upon by the defense, with which defense counsel concurred.1 The trial court then denied the writ.
Dismissal for Failure to Timely Indict
In appellаnt‘s sole point of error, he complains the trial court erred in denying his application for writ of habeas corpus by failing to dismiss the prosecution with prejudice under articles 32.01 and 28.061.
Article 32.01 provides that:
When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the distriсt court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his commitment or admission to bail.
(Emphasis added.)
Article 28.061 provides, in pertinent part, that:
If a motion to set aside an indictment, information, оr complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this article or Article 32.01 of this code is a bar to any further prosecution for the offenses discharged and for any other offense arising out of the same transaction....
(Emphasis added.)
As appellant observes, it is undisputed that he wаs not indicted during the term following his admission to bail. Relying on articles 32.01 and 28.061, Nix v. State, 882 S.W.2d 474 (Tex.App.-Houston [1st Dist.] 1994, pet. ref‘d), and Nguyen v. State, 882 S.W.2d 471 (Tex.App.-Houston [1st Dist.] 1994, pet. ref‘d), appellant argues he was entitled to be released from bail and to have the prosecution of his case dismissed with prejudice. The State argues that the trial court properly deniеd the writ because: (1) the complaint was dismissed prior to the writ hearing; and (2) articles 32.01 and 28.061 are unconstitutional per Meshell v. State, 739 S.W.2d 246, 257 (Tex.Crim.App.1987). The State also points out that if appellant‘s case were heard in the 239th District Court of Brazoria County, rather than the 23rd District Court, then the second term of court would not have passed.
a. Effect of the Justice Court Dismissal
1. The State‘s Argument
The State claims that dismissing the chargеs in the justice court should be treated in the same way as obtaining an indictment. The State relies on cases where relief is denied if an indictment is obtained prior to a hearing on an application for writ of habeas corpus based on article 32.01. See Tatum v. State, 505 S.W.2d 548, 550 (Tex.Crim.App. 1974); Garay v. State, 683 S.W.2d 21, 22 (Tex.App.-Waco 1984, pet. ref‘d); Wilkinson v. State, 899 S.W.2d 20, 21-22 (Tex.App.-San Antоnio, 1995).
We note that all but one of the cases cited by the State preceded the 1987 amendment of article 28.061, making it applicable to article 32.01. See Act of May 20, 1977, 65th Leg., R.S., ch. 787, § 4, 1977 Tex.Gen.Laws 1970, 1972, amended by Act of May 22, 1987, 70th Leg., R.S., ch. 383, §§ 1, 4, 1987 Tex.Gen.Laws 1885, 1885, 1887 (effective for offenses committed on or after Sept. 1, 1987).2
Wilkinson is a different matter. The court of appeals did not discuss the 1987 amendment of article 28.061. See 899 S.W.2d at 21-22. Where a defendant now has a right to dismissal of charges with prejudice whenever the State fails to timely present an indictment or information, or file an affidavit satisfactorily showing good cause for fаiling to do so, the harmless error reasoning of the prior cases no longer applies. We disagree with the approach in Wilkinson, but note the result appears to be correct because the State provided a reasonable explanation for not timely presenting an information or indictment. See 899 S.W.2d at 20-23.
Thus, even if we agreed with the State, that dismissal of the underlying complaint has the same effect as an indictment, we would not apply the old rule which precluded relief under article 32.01 whenever an indictment was obtained prior to the hearing on the accused‘s application for writ of habeas corpus. Nevertheless, we find the dismissal of justicе court charges dispositive for another reason.
2. Dismissal Renders Writ Moot
Despite the language on the justice court docket sheet concerning a transfer to district court on March 28, 1994, no transfer appears to have been effected. Appellant‘s application for writ of habeas corpus filed on October 25, 1994, states the cаse was pending in the justice court. The justice court apparently exercised jurisdiction on October 31, 1994, by dismissing the charges against appellant. The record does not reflect any other charges pending against appellant. Therefore, the dismissal of the justice court complaint removed the threat of illegal restraint and confinement of which appellant complained in his application for writ of habeas corpus. This dismissal rendered appellant‘s application moot. See Armes v. State, 573 S.W.2d 7, 9 (Tex.Crim.App. [Panel Op.] 1978) (reaffirming the principle that the writ of habeas corpus lies only where the applicant is under some form of restrаint of liberty, either imprisoned or on bail).
While it is not clear upon what basis the trial court denied relief to appellant, one basis before the court was mootness following the dismissal of the justice court complaint earlier that day. Therefore, we hold that the trial court did not abuse its discretion in denying the application for writ оf habeas corpus.
b. Effect of Differing Terms of Court in Brazoria County
The State raises a troubling issue by pointing out that, in the 239th District Court of Brazoria County, the terms of court are different than in the 23rd District Court in the same county. The result in this case could differ depending on the court assignment of appellant‘s case. However, this question is not before us today.
c. The Constitutionality of Article 32.01
Because we have held that the dismissal of the justice court complaint rendered appellant‘s application for writ of habeas corpus moot, it is unnecessary to address the State‘s challenge to the constitutionality of article 32.01.
Conclusion
We affirm the trial court‘s order denying appellant‘s application for writ of habeas corpus.
OPINION ON MOTION FOR REHEARING
On motion for reheаring appellant argues that the court wrongly decided that dismissal
Appellant‘s Position
Appellant claims thе justice court had no jurisdiction in criminal cases except where a fine only may be imposed. Appellant points out his punishment for the felony offense alleged included two to 10 years confinement. Appellant relies on Ex parte Ward, 560 S.W.2d 660 (Tex.Crim.App.1978) for the proposition that the justice court has authority to take a felony complaint and issue а warrant of arrest, but does not have jurisdiction of a felony case. Id. at 662. Appellant concludes the justice court had no jurisdiction to dismiss the case, so that the writ of habeas corpus was still pending in the district court.
Dual Criminal Jurisdiction of Justice Court
We agree with appellant that a justice court has jurisdiction over criminal cases where a fine only may be imposed and that the justice court has authority to take a felony complaint and issue a warrant of arrest, but does not have jurisdiction of a felony case. It appears, however, that appellant confuses the two roles of a justice of the peace: (1) the general criminal jurisdiction; and (2) jurisdiction as a magistratе. The real question is whether the justice court had jurisdiction over the complaint in its function as a magistrate such that its dismissal of the complaint constituted a dismissal of the case. The answer is clarified by an examination of the respective roles of a justice court exercising criminal jurisdiction as a justice of the peace and as a magistrate.
a. General Criminal Jurisdiction of Justice Court
As pointed out by appellant,
b. Jurisdiction of Justice Court as Magistrate
The Texas Code of Criminal Procedure lists the justice of the peace as one of the officers that can function as a magistrate.
When a justice court holds an examining trial, he sits as a magistrate and not as a justice of the peace, and his powers and jurisdiction are those of the magistrate and not those of a justice of the peace. Brown v. State, 55 Tex.Crim. 572, 118 S.W. 139, 142 (App.1909). In Ex parte Clear, 573 S.W.2d 224 (Tex.Crim.App.1978), the issue before the court was whether the justice court had sole jurisdiction of the felony complaint filed therein. The court of criminal appeals in Clear stated that:
all the magistrates of a given county have co-equal jurisdiction; indeed this appears to be nothing less than the plain import of the statute. More specifically, we hold that a justice of the peace acting as a magistrate has jurisdiction concurrent with that of а district judge who also seeks to exercise magisterial powers.
The Clear court went on to state that
c. Application to This Case
Following the Clear case, the justice court herein, in its capacity as magistrate, had sole jurisdiction over the complaint by virtue of its having been originally filed there. The justice court retained thаt jurisdiction until it dismissed the complaint. See Preston v. State, 109 Tex.Crim. 610, 6 S.W.2d 757 (App. 1928) (holding that where the complaint filed in justice court was dismissed, another complaint charging the same offense could be filed subsequently in county court). Once the complaint was dismissed, appellant was under no criminal restraint and would not be under criminal restraint until further chargеs were filed or an indictment was returned by the grand jury. As we held on original submission, the habeas corpus proceeding in district court, challenging appellant‘s restraint based on the complaint pending in justice court, was rendered moot by the dismissal of the complaint in the justice court.
Conclusion
Having explained the difference between the justicе court‘s general criminal jurisdiction, where a justice court has no jurisdiction over a felony case, and its function as a magistrate, where a justice court has jurisdiction over a felony complaint, we overrule appellant‘s motion for rehearing.
COHEN and MIRABAL, JJ., also participating.
Notes
Article 4.12 deals with certain misdemeanor cases to be tried in justice court and thus is not applicable. SeeIf a motion to set aside an indictment, infоrmation, or complaint for failure to provide a speedy trial as required by Article 32A.02 is sustained, the court shall discharge the defendant. A discharge under this article is a bar to any further prosecution for the offense discharged or for any other offense arising out of the same transaction.