*1 595 par- of jurisdiction trial court lost by which was secured in 1974 and wife cause. matter in this subject also ties and judgment trust lien. The deed of Harrison, supra. Re- Walker v. injunction against granted permanent foreclosing on the enjoining him from lator finding that the points out Cauthorn cer- directing perform him to property and had been the case the trial court tain acts. 9,1982, February was reinstated on orally 18, 1983, filed a August On Cauthorn 17, judgment of March part the court’s of Relator, alleg- contempt against motion for Therefore, 1983, she appealed. and was not of judgment that he had violated ing judg is bound contends that Relator 17, Sep- 1983. On the court dated March attack it here. collaterally ment and cannot 16,1983, heard the matter tember the court because the trial that contention reject We assessing in contempt, and found Relator March to enter the jurisdiction no court had 60-day of two concurrent punishment judgment final of 17, The judgment. 1983 of provisions for violation of two jail terms a written only by set aside dismissal can be 17, Thе order judgment. 1983 the March reinstating expressly specifically order remain in that he was to provided further dismissed. Such previously the cause by complying himself jail purged until he during period be entered order must judgment. juris plenary court has time in which the plenary jurisdiction period This diction. con- vigorously has at all times Relator after the court heard and days ended 30 jurisdiction tended that the trial court lost to reinstate. McCor upon the motion acted oral of the case when it was dismissed Guillot, (Tex.1980). 345 v. 1982, mack 28, Jаnuary on pronouncement was That motion TEX.R.CIV.P. 329b. having reinstatement been written order of 9, 1982, February on upon and acted trial court. He heard subsequently signed by the only extended jurisdiction so the court’s pend- out that no counterclaim was points 329b. 11, 1982. TEX.R.CIV.P. the oral until March ing pronouncement at the time of jurisdic had no 2,1983, later the court one was filed March judgment although On of dis Relator’s alle- the written order day. that same We sustain tion to set aside 1,1982, therefore its February the trial court was gation and hold missal dated contempt jurisdiction nullity. without to enter was a action order, order his release. reversed contempt judgment Relator, F. is ordered Jose Olivares orally pronounced
When the court custody. from released the cause on Janu judgment dismissing 28, 1982, rights parties were ary Harrison, 913, v. 597
fixed. Walker S.W.2d All and all issues (Tex.1980). parties plain a dismissal disposed
were entry signed The formal
tiff’s cause. ministerial act.
judgment merely Dunn, (Tex. Dunn S.W.2d KALISH, Appellant, Steven 291, 257 1969); Long, Knox v. 152 Tex. UMC, Ar (1953); Inc. v. S.W.2d Texas, Appellee. The STATE Bros., (Tex.App.— thur n.r.e.). writ ref’d Christi Corpus No. 036-83. counterclaim, subsequent filed Galvan’s Texas, Appeals of Criminal Court judgment could to the pronouncement Banc. En setting aside not have the effect 14, 1983. Dec. Inc. v. Don
judgment.
Enterprises,
Metal
Love, Inc.,
(Tex.Civ.App.—
Once *2 Houston, DeGuerin, appellant. for
Dick Wiginton and Atty., Jo Jim Dist. Mapel, Attys., Stevenson, Dist. Asst. Richard C. Huttash, Atty., State’s Robert Angleton, Austin, for the State. PETITION APPELLANT’S ON
OPINION REVIEW FOR DISCRETIONARY CLINTON, Judge. Act, Acts Trial
The Texas
Act)
(the
inserted
p. 1970
Leg., ch.
65th
proce-
our code of
Chapter 28 of
provide
to
Article 28.061
a new
dure
sustaining a motion to
follow
consequences
for failure
instrument
charging
set aside a
for trial within
to be
thе State
problem
time limitations.1
applicable
by the
created
cause is
in this
presented
discharge of an
that a
mandate
legislative
any
“to
one offense
from
accused
of-
any other
for
prosecution ...
further
discharge
this article
Delay.
A
Discharge
fendant.
for
1. “Article 28.061.
any
the offense
further
bar to
infor-
aside an indictment
If a motion to set
arising
discharged
offense
or for
other
mation,
provide
complaint
for failure
or
required
same transaction.”
speedy
Article
оut of the
as
32A.02
trial
discharge
sustained,
the de-
court shall
intoxica-
lant
the offenses
fense
out of
same transaction”2
arising
tion,
Quaalude
leave
file
for discre-
granted
petition
We
tionary review
determine whether
Cocaine, respectively.3
correctly
con-
term “same transaction”
proceedings
justice
in a
court
Following
purposes
strued for
court for trial
appellant appealed
appeals
in Kalish v.
*3
intoxication com-
public
de novo of the
(Tex.App.—Houston (14th) 1982).
set
Subsequently, his motion to
plaint.
The
of this matter
reflected in
facts
are
granted
complaint
aside
was heard and
that
report
by
arresting
an offense
made
the
complaint
Meanwhile the
June
1980.
officer,
by appellant,
introduced
admitted
ripened
cocaine
into
for
of
objection
without
from the
and
offense,
alleging that
which was
indictment
making
the
court
its
by
considered
trial
in
3, 1980.
filed in the district court March
recast
ruling.
report
his
to focus on
We
a written an-
attorney
filed
district
аppellant, but do not
alter the
materially
10, 1980,
of
March
and
nouncement
deputy’s account.
seems to have an-
thereafter
the State
for failure
Upon stopping motor vehicle
the
was
ready whenever
case
nounced
headlights
deputy
to dim
the
instructed its
called.
to step
driver
from a four door automobile
2,1980
plea
his
in bar
appellant filed
July
produce his driver’s
The three
and
license.
dismiss,
that
noting
pub-
and
to
the
motion
remaining suspects,
appellant,
including
complaint
been dis-
lic
had
intoxication
get
the
were asked to
out of
vehicle. After
discharged
he
been
there-
missed and
had
vehicle,
four suspects
appellant
the
left the
from,
supra,
invoking Article
and
ran toward a fence
the
on
northside
from the
discharge
for
of and
dismissal
state
and threw two
of white
highway
bags
evidentiary
After an
cocaine indictment.
(later
Quaalude
substance
as
and
identified
rejected
the
court
August
trial
hearing
Cocaine)
bags
over the
were
fence. The
the
plea
Aрpel-
and denied
motion.4
later
aby patrolman
collected
who had been
complained of
ground
lant’s
of error
sole
suspects
called to
appeared
assist. The four
and within such constraint
ruling,
that
to be
were placed
intoxicated and
of-
court
found that
two
appeals
of
arrest,
being separated from his
appellant
fenses—public intoxication
placed in a
unit
companions
patrol
by
transac-
not
the same
cocaine—“were
himself. After
thе automobile had been
tion,”
State,
at 91. Accord-
“examined,”
Kalish
transported
were
suspects
judgment
was
error and the
jail,
ingly
there
no
deputy promptly prepared
appel-
and filed three
was affirmed.5
complaints charging
of conviction
appellant
by
“un-
emphasis
throughout
was then
supplied
know whether
2. All
do not
opinion
sub-
alcohol or
other
writer of this
unless otherwise
indi-
der
influence of
Code,
42.08(a).
stance,”
cated.
V.T.C.A.Penal
evidence,
Listing
dep-
acknowledged
was seizеd as
judge recognized
4. The trial
powder
uty
“one
included
dollar bill with white
being
with matter
that
was
confronted
he
substance,”
plastic bag
pow-
“one
white
impression—“what
is meant under Article
first
substance,”
gold
spoon”
sniff
and a
der
“one
by
term ‘transac-
the definition
28.061
Whiskey.”
“small bottle J & B Scotch
His
grounds for the
advanced several
tion’ ”—and
complaint
public
alleged appel-
However,
for
intoxication
ultimately
ruling
made.
our con-
he
alcohol,”
lant was “under the influence
but
with the construction fashionеd
cern is more
finally
matter
never
tried the
since that
was
may
appeals,
though
allude to
we
the court of
Indeed,
record
not reveal that is the
does
case.
suggested by
judge.
trial
at least one other
emphasizes, “There is
no
in its brief the State
protect
judgment
in
the State asserted
5. To
Appellant’s intoxicated
evidence to show that
apply
appeals
does
probably
the court
condition
more
caused
co-
was
de novo
appeals
court and that
liquоr
caine than it was
or the marihua-
complaint
intoxication
part,
rehearing
dismissal
in his motion for
na.” For his
binding
says
Like the
appellant
the district court.
appeals,
was not
on
filed in
the court
below,
not reach those conten-
possessed
we do
“the
caused
he
intoxicants which
short,
publicly
him to
In
we
tions.
intoxicated.”
Therefore,
reaching
In
its conclusion the court of
it is
doctrine that
established
appeals opined: “The term ‘same transac-
more than one offense
be committed
tion’ is one
acquired
unique
which has
a man in one
Whether a
transaction.
interpretation
Texas criminal law.” It
crime,
prosecution for one
carved out of
appeals
believed that the
former court
transaction,
the one
should be held
“explained
had
the term ‘criminal transac-
another,
an indictment
carved out of
” in
State,
tion’
Whitford v.
Tex.App.
transaction,
ques-
same
is different
489,
pulse identified in Ordunez in 1977 was Bishop’s For New Criminal concept. Bean, 469-470, the same (8th Ed.1892) pp. Law “More than (Concurring Opinion): 1979) restated, heading and under the material is acсused, afforded constitutionally right Mr. Distinguished” “Transaction Crime be prosecutions that criminal the notion Bishop wrote: interest, is in the speedily tried crime between a “There is a difference disposition being prompt that rationale The latter is and a criminal transaction. im punishment and swift cases pending single proceeding a series of acts from protect serve to guilty on the posed impulses impulse or connected series Therefore, Legis id., 917. at citizenry,” will, them such that one or more of ac of a criminal trial lature directed ” * * * indictable. at will be trials of civil over given preference tion be against action that a criminal cases and continued to make Bishop And Mr. over given preference detained accused carving doc- point application actions, Article trials of other varied “a different question”—with trine is Y.A.G.C.P.; mandated the 32A.01, it also answers. a crimi for trial of to be Indeed, McWilliams, in Ex parte *5 time prescribed varying nal action within abandoning (Tex.Cr.Apр.1980), S.W.2d 815 to classification according periods said, doctrine, carving “Any the Court offense, strong Article 32A.02. So alleged a of conduct can be labelled sequence Legislature, that the was the motivation ‘transaction’ and this Court has construed observer, “aimed at close words of one Id., term in an inconsistent manner.” un process an acceleration of coercing out, Earlier, a points at 824. as the State Cohen, charges.” der threat of dismissal attempted to substi State Bar Committeе to a Right 1043 and the Bill Senate episode’ tute term—‘criminal precise a more Texas, 7, 1 American Jour Vol. No Trial in Code, —in its It cites Texas Penal place.” 23, 1979) at 24. (March Law nal of Criminal (Final 1970)— Proposed A Revision Draft we must determine light It is in this that accompanying the “Blue 3.01 and Book”—§ as used transaction” meaning of “same However, pro Committee Comment.7 provisions in Article 28.061 and other was posed episode” definition of “criminal Act. it Legislature; not rather adopted meaning. foremost, different thаt completely fashioned a it is obvious First and Code, might re 3.01: “the that there V.T.C.A. Penal was aware Legislature § See of- any offense or other peated any commission of one “the same offense coexist transaction,” (Offenses in Title 7 of this code out of the same arising defined fense 4(7). That 32A.02, 2(a) (c); hav Legislature and Against Property).” § Article § and dis- separate “a are sees as two or more offenses rejected what the State ing elements, then, accepted for is in their definition for tinct workable and consistent ” State, v. 659 Rosebury Act. ‘transaction,’ apply purposes we should term impossible find a uniform “Multiple law since it is Chapter the Blue Book treated 3 of in the Jeopardy.” ‘transaction’ In 3.01 the term § and Double definition of Prosecutions ep- episode” However, concept proposed of ‘criminal definition of “criminal cases. conduct, including solici- “all criminal probably included than the ‘transac- broader isode’ is conspiracy, to the incident preparatory tation and criminal attempt concept it includes tion’ since single accomplishment criminal or conspiracy and as solicitation such offenses though objective, harm is directed even act,’ beyond acts or ‘all ‘one extends per- upon one more than toward or inflicted piace,’ or time and at the same committed The committee commented: son.” volition,’ all conduct and one ‘one act precisely how the is difficult to state “It objective.” singlе criminal directed at change episode’ concept Texas will ‘criminal 600 However, an “act” of is of time. 1983). The Act (Tex.Cr.App., 655 .2d
S.W
“victimless,”
is not considered
usually
but
jeopardy problems,
with
not concerned
it is discerned or
inducing speedy trials.
transaction until
another, ordinarily upon ar
discovered
Article 28.061
contends that
Appellant
in,
parte
Ex
rest,
e.g.,
search or seizure—as
all
any and
“to include
should
construed
94,
96
Rodriguez, 560 S.W.2d
not,
offenses,
or
chargeable
separately
Adams, 541
440
1978);
S.W.2d
parte
Ex
simultaneously
serially
or
committed.”
State,
Tex.
v.
100
(Tex.Cr.App.1976); Gates
appeals:
he
to the court
Similarly,
argued
36,
(1925);
parte
see Ex
271 S.W.
Cr.R.
posses-
intoxication
public
“Both
914,
Mitchell,
(Tex.Cr.App.1
571 S.W.2d
are contin-
controlled substance
sion of a
978).9
allegedly com-
offenses. Both were
uing
is, at
simultaneously,
that
mitted
until
is not
offense
intoxicated
Being
witnessed
place,
same time and
of alcohol or
under the influence
one
simultaneously
officer to have
the same
ap
requisite degree
other substаnce to
It is thus uncontroverted
occurred.
Penal
place. Y.T.C.A.
public
in a
pears
same
arose out of the
trans-
both offenses
movement
Code,
42.08(a). Though bodily
action.”
offense
possessory
like a
required,
is thus
a criminal
becomes
the contention
intoxication
argument
public
In
of his
light
in that condi
when one is found
merits closer examination.
transaction
State,
Dickey
tion.
thing
If
controlled
possessed
discussed
cases
(Tex.Cr.App.1977)
ingested
has
possessor
substance and its
therein;
State,
cf. Davis
be found intoxicated
enough of
January v.
see
(Tex.Cr.App.1978);
n. 2
the offense
public,
302, 146
(1912).
Tex.Cr.R.
surely are
intoxication
offense
Here, however, the
the same transaction.
person
when a
We hold
appellant
show that
evidence fails to
restraint or taken
detained, placed under
note
influence of cocaine. See
under the
officer, all such
peace
custody by
into
change the
But does that
failure
ante.
*6
which the
voluntary conduct in
chargeable
of the trаnsaction?
identity
engaged, consti
and there
was then
person
voluntarily
All
offenses involve
nature,
in
continuing
tuting an offense
conduct,
act, an
including an
in
engaging
Accord
the same transaction.
arises out of
omission,
Penal
Y.T.C.A.
possession,
or
and circumstances
the facts
ingly, given
Code,
by
6.01(a),
are manifested
and acts
§
officer, we find that
by
peace
the
recounted
movement,
a
id., 1.07(a)(1), whereas
bodily
and the
of cocaine
offense of
something
is
voluntary
“act”
intoxication, being com
offense
omission. Sec
from both act and
distinct
by appellant,
contemporaneously
mitted
State, 623 S.W.2d
6.01(b); Phelps v.
tion
transaction.
the same
were of
Gorman
see
(Tex.Cr.App.1981);
however,
Court,
the
upon
Pressed
685-686
634 S.W.2d
court indi
that,
the trial
as
argument
the
one vol
1982)
When
(Concurring Opinion).
in bar
plea
overruling appellant’s
cated in
con
conduct
engages in criminal
untarily
dismiss, a construction
motion to
it
movement, generally
bodily
sisting
influ
should be
transaction”
“same
term
becomes
and thus
a “victim”
produces
fixed
Legislature
the
fact that
the
by
enced
kind of criminal trans
That
transaction.8
ready
be
must
State
the times within
of con
with cessation
action terminates
its classification
according to
period
for trial
relatively
in
brief
duct—ordinarily
implicated
carving
in
Though
may
exclusively
doctrine
his
9.
deeds
be
acts or
“One’s
cases, they
agency
demonstrate
own;
or
are cited here to
transactions
his
involve
these
original)
(Emphasis
a transac-
participation
possessory
becomes
оf others.”
offense
when
Syno-
Wagnalls
Handbook of
Standard
Funk &
tion.
nyms, Anatonyms
Prepositions, 423.
&
original
County
Article
Court shall have
possible punishment.
offenses and
“The
of all
of which
jurisdiction
misdemeanors
32A.02,10
argu-
1. We
reject
must
§
original jurisdiction
given
is not
exclusive
there is
simple
ment for the
reason that
is now or
the Justice Court as the same
in the Act to
nothing
support it.
law,
prescribed by
be
hereafter
may
Legislature
chose to treat
When
fine to
shall exceed
imposed
when the
be
ac-
arrest as commencement of “a criminаl
V,
Art.
TEX.
Sec.
CONST.
$200....”
it
tion” and fashioned
to embrace “the same
V.A.C.C.P.;
16;
4.07,
also Art.
See
out of
arising
offense or
other offense
any
peace
jurisdic-
have
shall
“Justices
transaction,”
the same
it dictated
all cases
criminal matters of
tion in
whichever
be
for trial within
State
imposed
fine to be
penalty
where the
or
period
prescribed
of time was
or suffer
hun-
than two
may
law
be more
by
instrument,
charging
dismissal
dollars,
jurisdic-
...
such other
dred
“any
a dismissal
further
meant such
civil,
provid-
be
tion,
may
criminal and
as
discharged
fоr the
or
offense
law,
as
by
regulations
ed
such
”
arising
other offense
out of
by law ....
TEX.
prescribed
32A.02,
2(a);
same transaction.” Article
Y,
19;
also
Art.
Sec.
Art.
CONST.
See
inclusive lan-
supra.
Article
Such
4.11, V.A.C.C.P.
al-
Legislature
will not
guage
used
the dis
majority,
As construed
really
low
in-
a construction
Texas
Trial
provision
missal
was to limit
transaction”
tended
“same
scheme
this Constitutional
Act offends
like degree.
argument
offenses of
The
jus
to authorize the
purporting
without merit.
or defeat
peace
deny
courts to
tice of
error
sus-
ground
The
should have
the district court.
jurisdiction granted only
judgment
ap-
tained.
of the court
gives the district
Our Constitution
peals and the trial court
is reversed
cases
jurisdiction in all criminal
exclusive
12,467
No.
in the trial
indictment
Cause
State, 68
felony. Hughes
grade
pros-
court is ordered dismissed and further
(Tex.Cr.
Tex.Cr.R.
appellant
alleged
ecution of
for the offense
authority cannot
grant
This
App.1913).
therein is barred.
a lower court
or trenched on
be defeated
there is
lacking
jurisdiction.
such
Where
“the
of the court
jurisdiсtion,
power
McCORMICK, Judge, dissenting.
as if
not exist.” Ex
act is as absent
it did
28.061
Because
construction of Article
Caldwell,
(Tex.Cr.
parte
proferred by
majority
sanc-
V.A.C.C.P.
Sandoval, Ex parte
See
App.1964).
on
infringement
tions an unconstitutional
*7
54,
the framers to the jurisdiction via a writ felony in Morrow Court observed sive Supreme Texas 641, with a trial or 553, proceed court to Corbin, v. 112 Tex. period for misde within the time (1933), dismiss it Speedy Trial Act is allowed meanors sys- has erected a the Constitution “Since between type interference courts, precisely appellate tem of both trial and Corbin, in Morrow su decried tribunals purpose was never the obvious that majority today. pra, yet invited tribu- Organic permit Law to one exercise nal to interfere with the lawful reasons, I above dissent. all For judicial power allocated another framers purpose to it. It was the DAVIS, W.C. DAVIS G. TOM make each tribunal Constitution JJ., CAMPBELL, this dissent. join in in the exercise independent of all others it, excеpt authority confided direction powers so far as of revision or Organic Law or valid given over trial appellate thereunder to
statutes
tribunals.” 250, 253, also, Hay, 89 French v. U.S.
See
253,
(1875);
ercise proceed county court in criminal
over the with the power and its to interfere
ings,
orderly dispatch of such business conferred limited to that
latter tribunal is statutes of our
by the Constitution and Tex. v. Chandler Winfrey
State.” [159 (Tex.1958).
220], 318 S.W.2d
However, these “constitutional , court has no a district
statutory provisions1 case the trial of a criminal stay
power where nec except in another
pending *8 protect or enforce
essary appropriate added). (emphasis Id. jurisdiction”.
its own 495, 20 State, 1 Tex.Civ.App.
See Seele con history). A (1892, writ forces of Art.
struction writs neces- all other supersedeas, “Judges ran and provides that Art. V.A.C.S. jurisdiction of the sary enforcement or in in term time courts either the district mandamus, injunction, vacation, grant writs of court.” attachment, garnishment, sequestration, certio-