No. 09-06-532 CR
Submitted on August 9, 2007.
Opinion Delivered April 30, 2008.
On Appeal from the 75th District Court, Liberty County, Texas, Trial Cause No. CR20239.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
CHARLES KREGER, Justice.
BACKGROUND
This is an appeal from an order entered sua sponte by the trial court on October 30, 2006 ("2006 order"). The background facts do not appear to be in dispute. In pertinent part, the 2006 order reads as follows: Came on this the 30th day of October, 2006, the Court's Motion to Set Aside the Order dated February 6, 2004, which Terminated the Community Supervision of the Defendant, Jose Gregory Moore. The Court finds that the Defendant was placed on community supervision on February 3, 1994, for a period of ten (10) years for the offense of indecency with a child. On January 30, 2004, counsel for the defendant filed a Motion to Terminate the Defendant's Community Supervision and Set Aside the Conviction. Through inadvertence the Order was signed. The Order is void pursuant to Art. 42.12 § 20 C.C.P. as the Court was without jurisdiction to enter the order as the relief requested by the Defendant was not available under the statute. IT IS ORDERED and DECREED that the Order signed February 6, 2004 is of no force and affect [sic] and was never of any force and effect. SIGNED this the 30th day of October, 2006. On appeal, Moore questions the trial court's authority to enter this order, contending the trial court's action amounted to an unconstitutional ex post facto violation. The record indicates that in February of 1994, Moore pled nolo contendere to the felony offense of indecency with a child without benefit of a negotiated punishment recommendation. The trial court assessed punishment at ten years of confinement in the penitentiary and assessed a fine of $2,500. The trial court suspended the imposition of Moore's incarceration and placed him on community supervision for a period of ten years. From all indications, Moore successfully completed his ten years of community supervision. In January of 2004, Moore's counsel filed a motion to terminate Moore's community supervision and to set aside the conviction. A certificate of service accompanying the motion indicated that Moore's counsel hand-delivered a copy of the motion to the Liberty County District Attorney on the day the motion was filed. The State does not dispute the fact it timely received this notice. Additionally, nothing in the record indicates the State filed any response to this motion or took issue with it in any way. Thereafter, on February 6, 2004, the trial court signed an order ("2004 order") which reads, in pertinent part, as follows: Moore's Motion to Terminate Community Supervision and Set Aside the Conviction is granted. It is therefore Ordered that: 1. The term of community supervision in this case is terminated;
2. Moore is allowed to withdraw his plea;
3. The proceedings against Moore are dismissed;
4. Moore is discharged from any further responsibility or obligation in this matter; and
5. Moore is released from all penalties and disabilities resulting from his conviction.
Signed and entered on /s/ February 6, 2004. The 2004 order was entered pursuant to section 20(a) of article 42.12 of the Texas Code of Criminal Procedure, which contains provisions for a trial court to order a reduction or termination of a defendant's period of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 20(a) (Vernon Supp. 2007). Section 20(a) also permits the trial court to set aside the verdict or allow the defendant to withdraw his plea and to dismiss the charging instrument, thus releasing the defendant from certain "penalties and disabilities" normally attendant to felony convictions in Texas. Id.; see also Cuellar v. State, 70 S.W.3d 815, 817 n. 3 (Tex.Crim.App. 2002). Currently, subsection (b) of section 20 specifies that its reduction, termination, or dismissal provisions are not applicable to a defendant who has been convicted "of an offense . . . for which on conviction registration as a sex offender is required under Chapter 62,. . . ." Tex. Code Crim. Proc. Ann. art. 42.12, § 20(b) (Vernon Supp. 2007). It is undisputed that the offense for which Moore was convicted and served community supervision (indecency with a child) is listed among those in Chapter 62 requiring registration as a sex offender. See id. art. 62.001(5)(A) (Vernon Supp. 2007), art. 62.002 (Vernon 2006). On appeal, Moore correctly points to the fact that when he was convicted and placed on community supervision in February of 1994, subsection (b) of section 20 did not contain any language excluding convictions for sex crimes, including indecency with a child, from eligibility for reduction, termination, or dismissal of an otherwise successfully completed "regular" probation or community supervision. See State v. Juvrud, 96 S.W.3d 550, 556-57 (Tex.App.-El Paso 2002), aff'd, 187 S.W.3d 492 (Tex.Crim.App. 2006). The gist of Moore's appellate complaint is that the 1999 amendment to subsection (b) enacted during the period of his community supervision constitutes an ex post facto law in violation of article 1, section 10 of the United States Constitution. See U.S. Const. art. I, § 10. The State's reply brief contends, however, that we lack appellate jurisdiction because the 2006 order "merely returned [Moore] to the position he had been in at the time he initially filed his [Motion to Terminate]. . . ." In support of its position, the State directs our attention to Verdin v. State, 13 S.W.3d 121 (Tex.App.-Tyler 2000, no pet.), a case it describes as "almost exactly on point[.]" Verdin is inapposite to the facts and law applicable to the instant appeal. Verdin involved an appeal from what the Tyler Court of Appeals determined to be the refusal by the trial court to issue a writ of habeas corpus. Id. at 122-23. As the court of appeals correctly pointed out, "it is well-settled that no appeal lies from the refusal of a trial court to issue a writ of habeas corpus even after a hearing." Id. at 122 (citing Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.Crim.App. 1991)). Additionally, while the trial court in Verdin still possessed plenary power over the original writ action when it set aside its previous orders granting Verdin's writ application and issuance of the writ, in the instant case, as we will subsequently discuss, the 2006 order was entered over two years after Moore's successful completion of his period of community supervision and after the trial court had lost both personal and subject matter jurisdiction. Because the State questions our jurisdiction, we must begin by addressing that matter. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996) (issue of jurisdiction is "fundamental and cannot be ignored"), overruled on other grounds by State v. Medrano, 67 S.W.3d 892, 903 (Tex.Crim.App. 2002). APPELLATE JURISDICTION
A court has jurisdiction to determine whether it has jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996). "A timely tendered notice of appeal vests an intermediate appellate court with jurisdiction to consider the merits of an appeal." Stansberry v. State, 239 S.W.3d 260, 264 (Tex.Crim.App. 2007); see also Bayless v. State, 91 S.W.3d 801, 803 n. 2 (Tex.Crim.App. 2002). A criminal defendant wishing to appeal must file with the trial court clerk "a sufficient notice of appeal" within thirty days after the entry of an appealable order. Tex. R. App. P. 25.2(b), (c)(1), 26.2(a)(1). The notice of appeal is sufficient if it shows the defendant's desire to appeal from the appealable order. Tex. R. App. P. 25.2(c)(2). Additionally, whether an order is or is not "appealable" does not affect our jurisdiction over an appeal. See State v. Cowsert, 207 S.W.3d 347, 352 (Tex.Crim.App. 2006) ("[W]e hold that the court [of appeals] had jurisdiction even though [the trial court's order] was not an appealable order. A lack of authority for a party to appeal does not equal a lack of jurisdiction for an appellate court.") The record reflects Moore's notice of appeal was filed within thirty days from the date the trial court entered the 2006 order. A relatively recent opinion by the Court of Criminal Appeals includes the following observation: "As Professor Dix points out, . . . this Court 'functionally embraced an approach to perfecting appeals and notice of appeal closer to that of the Texas Supreme Court.'" Few v. State, 230 S.W.3d 184, 189 (Tex.Crim.App. 2007) (quoting 43A George E. Dix Robert O. Dawson, Texas Practice: Texas Criminal Practice and Procedure § 43.252 (2d ed. 2001 Supp. 2007)). "The Texas Supreme Court 'decline[s] to elevate form over substance[.]'" Id. (quoting Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)). Although superior reviewing courts have occasionally been "less than meticulous" in their terminology, courts of appeals' jurisdiction is comprised of subject matter jurisdiction and personal jurisdiction; in other words, our jurisdiction consists of the authority to address and determine the merits of particular legal issues involving specific types of litigants. Olivo, 918 S.W.2d at 522. Thus, "[e]stablishment of jurisdiction by law and invocation or attachment of jurisdiction in accordance with procedural rules are two distinct concepts." Id. at 522-23; see also Bayless, 91 S.W.3d at 803 n. 2. As the Olivo Court explained: Examples of laws that establish jurisdiction of courts of appeals are Tex. Const. Art. V, § 1 (courts in which judicial power is vested), Tex. Const. Art. V, § 6 (courts of appeals); V.T.C.A. Gov't Code §§ 21.001 (inherent power and duty of courts), 22.220 (civil jurisdiction), 22.201 (courts of appeals districts), 22.221 (writ power), 73.001-73.002 and 22.202(i) (transfer of courts of appeals' cases); and Articles 4.01 (courts with criminal jurisdiction) and 4.03 (courts of appeals), V.A.C.C.P. . . . The Rules of Appellate Procedure do not establish courts of appeals' jurisdiction; they provide procedures which must be followed by litigants to invoke the jurisdiction of the courts of appeals so a particular appeal may be heard. Olivo, 918 S.W.2d at 523; accord Bayless, 91 S.W.3d at 805. Therefore, from the facts contained in the appellate record, we find that Moore has timely and properly invoked the appellate jurisdiction vested in us by the provisions of the Texas Constitution, the Texas Rules of Appellate Procedure, and the various statutory provisions noted above. See White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App. 2001) ("If the jurisdiction of a court of appeals is not properly invoked, the power of the appellate court to act is as absent as if it did not exist.") THE 2004 ORDER
As noted above, the trial court's apparent reason for rescinding its 2004 order was its understanding that Moore's indecency with a child offense prohibited him from taking advantage of the reduction, termination, or discharge provisions contained in section 20(a) of article 42.12. See Tex. Code Crim. Proc. Ann. art. 42.12, § 20(a). As we alluded to previously, the portion of section 20(b) of article 42.12 at issue was added by the 76th Legislature in 1999, approximately five years after Moore was convicted for indecency with a child and placed on community supervision. See Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 5(b), 1999 Tex. Gen. Laws 4831, 4833, amended by Act of May 21, 2007, 80th Leg., R.S., ch. 1205, § 6, 2007 Tex. Gen. Laws 4078, 4080-81. However, immediately following the newly-added language in section 20(b), which disqualified defendants convicted of offenses requiring registration as a sex offender from the termination and reduction provisions in section 20(a), the 1999 Legislature inserted the following: (c) The change in law made by this section applies only to a defendant who . . . is convicted of an offense on or after the effective date of this Act, regardless of whether the offense for which the defendant . . . is convicted is committed before, on, or after the effective date of this Act. A defendant . . . convicted of an offense before the effective date of this Act is covered by the law in effect when the defendant . . . was convicted, and the former law is continued in effect for that purpose. See Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 5(c), 1999 Tex. Gen. Laws 4831, 4833 (amended 2007). Indeed, when Moore was adjudicated guilty and placed on community supervision in February of 1994, article 42.12, section 20 of the Texas Code of Criminal Procedure had been amended the previous year by the 73rd Legislature with newly-added subsection (b). See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, sec. 20, 1993 Tex. Gen. Laws 3586, 3739 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 20(b)). At the time of Moore's conviction, section 20(b) read as follows: "This section does not apply to a defendant convicted of an offense under Sections 49.04-49.08, Penal Code, or a defendant convicted of an offense punishable as a state jail felony." Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, sec. 20, 1993 Tex. Gen. Laws 3586, 3739 (amended 2007). It is undisputed that neither of these two limitations applied to Moore at the time of his indecency conviction in 1994. When Moore successfully completed his community supervision in 2004 and petitioned for reduction, termination, and discharge under the provisions of section 20(a), the trial court was properly allowed to grant his petition in all respects as the 1999 language disqualifying sex registration defendants expressly did not apply to him. Thus, the trial court's 2004 order terminating Moore's community supervision, withdrawing his nolo contendere plea, dismissing the proceedings against him, and releasing him from all penalties and disabilities resulting from his conviction is not void, but was properly entered and is entitled to be regarded as having always been in full force and effect. See, e.g., Ex parte McCain, 67 S.W.3d 204, 209-10 (Tex.Crim.App. 2002); Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App. 2001). THE 2006 ORDER
A trial or appellate court may always notice and correct an illegal or unauthorized order, judgment, or sentence if it otherwise has jurisdiction. See Rhodes v. State, 240 S.W.3d 882, 887-88 (Tex.Crim.App. 2007) (distinguishing between entire judgment being void and only a portion of a judgment being void); Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003) (finding Mizell's sentence illegal because it fell outside statutory permissible range of punishment). As we have determined the 2004 order was not a void order, the trial court was without authority to enter its sua sponte 2006 order attempting to rescind the earlier order. Indeed, upon the record before us, we are unable to determine the source of any putative subject matter or personal jurisdiction on the part of the trial court with regard to Moore's successfully served community supervision. See, e.g., State v. Patrick, 86 S.W.3d 592, 595 (Tex.Crim.App. 2002) (as trial court's order permitting DNA testing was based upon neither Chapter 64 nor pending habeas corpus application, "[the] trial court was therefore clearly and indisputably without jurisdiction to issue the order in question."). Additionally, at certain times, the Court of Criminal Appeals has suggested that a trial court may retain "plenary power" to modify or rescind an order within thirty days of its entry. See Swearingen v. State, 189 S.W.3d 779, 781 (Tex.Crim.App. 2006) (citing State v. Aguilera, 165 S.W.3d 695, 697-98 (Tex.Crim.App. 2005)). However, in the instant case, any plenary power the trial court may have retained following its 2004 order terminating and discharging Moore's probation and criminal case expired long before entry of its sua sponte 2006 order. Having determined the trial court's 2004 order was not void but fully effectual, and having determined its 2006 order to be a nullity and accorded no respect due to the lack of subject matter jurisdiction and authority to render it, we vacate the 2006 order and dismiss the cause. See Tex. R. App. P. 43.2(e). We further find that when a trial court acts entirely without subject matter jurisdiction, the proper remedy is to return the parties to the positions they occupied prior to the trial court's actions. See Deifik v. State, 58 S.W.3d 794, 798 (Tex.App. — Fort Worth 2001, pet. ref'd) (citing Smith v. State, 40 S.W.3d 701, 702 (Tex.App.-Waco 2001), pet. dism'd, 72 S.W.3d 353 (Tex.Crim.App. 2002)). ORDER OF OCTOBER 30, 2006, VACATED AND THE CAUSE DISMISSED.