Affirmed as Modified in Part, Reversed and Remanded in Part, and Opinion
filed December 15, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-01008-CR

                            MARY KUOL, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 248th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1314040

                                 OPINION

      Appellant Mary Kuol asserts that the trial court lacked subject matter
jurisdiction to convict her of felony prostitution. We conclude that the information
here, even if defective as to the enhancing allegations, properly charged appellant
with the offense of prostitution, and thus, the trial court was vested with subject
matter jurisdiction. However, because the trial court imposed an illegal sentence
on appellant, we reverse and remand for proceedings consistent with this opinion.
                                  I.     BACKGROUND

      Appellant was arrested for prostitution by the Houston Metropolitan Transit
Authority. She was charged by information—waiving her right to a grand jury
indictment—with felony prostitution.           The indictment alleged that she had
previously been convicted of prostitution five times in Dallas County.            After
pleading guilty to the offense of felony prostitution, appellant was placed on
deferred adjudication community supervision. Appellant violated numerous terms
of her community supervision, and the State filed a motion to adjudicate her guilt.
The trial court found appellant guilty of felony prostitution and sentenced her to
three years’ confinement in the Texas Department of Criminal Justice, Institutional
Division.

      Within 30 days of judgment, appellant filed a “Motion in Arrest of
Judgment/Motion for New Trial,” in which she alleged that her current felony
prostitution charge was void for lack of subject matter jurisdiction. She asserted
that the criminal district court lacked subject matter jurisdiction because all five of
the prostitution convictions used to enhance her current felony prostitution charge
were also void. She claimed that the five prior prostitution convictions involved
judgments that were entered when she was a juvenile, and the county and district
courts entering those judgments lacked jurisdiction over her. Specifically, she
asserted that, of the five enhancing allegations, the three misdemeanor offenses
occurred when she was 14 years old and that the two felony prostitution offenses
relied on misdemeanor offenses that occurred when she was 14 and 16 years old.
She urged that these prior convictions were void because all of them occurred in
courts lacking subject matter jurisdiction, i.e., only a juvenile court had jurisdiction
over her when she was that age.



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       The trial court conducted a hearing on her motion. She presented the trial
court with all of the prior judgments, as well as a certified copy of her driver’s
license to establish her current age. After hearing the arguments of counsel, the
trial court overruled her motion. This appeal timely followed.

                                       II.     ANALYSIS

       Appellant makes a two-fold argument about the trial court’s lack of subject
matter jurisdiction in this case. First, she asserts that a district court only has
jurisdiction over prostitution when the accused has been convicted three previous
times of prostitution.      Second, appellant asserts that, although she has been
convicted five times previously for prostitution, those convictions are void because
the trial courts convicting her lacked jurisdiction over the cases. According to
appellant, the trial courts lacked jurisdiction to convict her of the enhancing
offenses because appellant was either a juvenile at the time of the conviction or the
conviction arose from prior juvenile convictions. First, we conclude that the trial
court had subject matter jurisdiction over appellant’s case. We then determine that
appellant was illegally sentenced and reverse for a new punishment determination.1

   A. Subject Matter Jurisdiction

       The Texas Constitution requires that the State must obtain a grand-jury
indictment in a felony case, unless this requirement is waived by the defendant.
Tex. Const. art. I, § 10. Absent an indictment or valid waiver, a district court does
not have jurisdiction over the case. Teal v. State, 230 S.W.3d 172, 174–75 (Tex.


       1
          Although appellant did not urge in her original appellate brief that her sentence was
illegal, we may consider and take action on an illegal sentence sua sponte. See Baker v. State,
278 S.W.3d 923, 927 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (“Any court with
jurisdiction can notice and take action upon an illegal or void sentence at any time, even sua
sponte.”). However, following oral argument, appellant filed a letter brief in which she
requested that we consider whether she was sentenced illegally.

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Crim. App. 2007); Martin v. State, 346 S.W.3d 229, 230–31 (Tex. App.—Houston
[14th Dist.] 2011, no pet.). An indictment or information provides a defendant
with notice of the offense and allows the defendant to prepare a defense. Teal, 230
S.W.3d at 175; Martin, 346 S.W.3d at 231.

      Article 1.14 of the Texas Code of Criminal Procedure provides that:

      [i]f the defendant does not object to a defect, error, or irregularity of
      form or substance in an indictment or information before the date on
      which the trial on the merits commences, he waives and forfeits the
      right to object to the defect, error, or irregularity and he may not raise
      the objection on appeal or in any other postconviction proceeding.

Tex.Code Crim. Proc. art. 1.14(b).      Indictments—or informations—charging a
person with committing an offense, once presented, invoke the jurisdiction of the
trial court, and jurisdiction is not contingent on whether the charging instrument
contains defects of form or substance. See Teal, 230 S.W.3d at 177. Thus, Texas
law “requires the defendant to object to any error in the [charging instrument]
before the day of trial and certainly before the jury is empaneled.” Id.

      Nevertheless, for the trial court to have jurisdiction, there still must be a
charging instrument. See Martin, 346 S.W3d at 232. A charging instrument must
allege that (1) a person (2) committed an offense. Teal, 230 S.W.3d at 179; see
also Tex. Const. art. V, § 12(b) (defining “indictment” and “information” as
written instruments presented to the court “charging a person with the commission
of an offense”). Accordingly, a defendant may challenge for the first time on
appeal an instrument that fails to charge the commission of an offense or does not
charge a particular person with the crime. See Teal, 230 S.W.3d. at 178–80.

      When determining whether an instrument is so flawed that it does not
constitute an actual charging instrument and thus does not vest the trial court with
jurisdiction, the critical determination is whether the court and the defendant can

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identify what penal-code provision is alleged and whether that provision vests the
trial court with jurisdiction. Kirkpatrick v. State, 279 S.W.3d 324, 328 (Tex. Crim.
App. 2009) (citing Teal, 230 S.W.3d at 180). We look to the charging instrument
as a whole, not just to its specific formal requisites. Id. If we conclude that the
trial court and the defendant can determine that the instrument intends to charge a
felony or other offense for which the trial court has jurisdiction, then the
instrument charges the commission of an offense, even if the instrument fails to
allege an element of the offense or contains additional information indicating the
person charged is innocent. Teal, 230 S.W.3d at 181–82; Martin, 346 S.W.3d at
232.

       Here, examining the charging instrument at issue,2 the State alleged that
appellant committed prostitution by agreeing to engage in sexual conduct for a fee
on or about July 21, 2011. As noted above, the State alleged five prior convictions
of appellant for prostitution in the charging instrument. Further, prostitution may
be a misdemeanor or felony offense.              See Tex. Penal Code Ann. § 43.02(c)
(providing that prostitution is generally a Class B misdemeanor, unless enhanced
by prior convictions, which may elevate the offense to a felony). Thus, based on
the allegations in the information, both appellant and the trial court could
determine that the instrument intended to charge a felony offense for which the
trial court has jurisdiction. Teal, 230 S.W.3d at 181–82; Martin, 346 S.W.3d at
232. Accordingly, we determine that the trial court had subject matter jurisdiction
in this case. See, e.g., Pomier v. State, 326 S.W.3d 373, 382–84 (Tex. App.—
Houston [14th Dist.] 2010, no pet.) (“However, even though the indictment
included language that would have properly charged appellant with a misdemeanor
rather than a felony, the trial court still had jurisdiction.”).
       2
         As noted above, appellant was charged by information and waived her right to
prosecution by a grand jury indictment.

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       Accordingly, we overrule appellant’s issue.3

   B. Illegal Sentence

       As discussed above, prostitution may be a felony offense; it is elevated to a
state jail felony “if the actor has previously been convicted three or more times” of
prostitution. Tex. Penal Code Ann. § 43.02(c)(2). Here, of the five previous
prostitution convictions alleged in the information, three occurred in October and
November 1999 in a county court at law.                  According to the information,
appellant’s date of birth is “06-12-1985.” Further, the State conceded in the trial
court that there was no “factual dispute” that the defendant was “a juvenile at the
time of those convictions in Dallas County.”4               Thus, these three enhancing
convictions occurred when appellant was only 14 years old.

       Generally, “[a] person may not be prosecuted for or convicted of any offense
that the person committed when younger than 15 years of age.”5 Tex. Penal Code
Ann. § 8.07(a). And the juvenile court has exclusive original jurisdiction over
children under seventeen years of age. See Tex. Fam. Code Ann. § 51.04(a)
(discussing jurisdiction of juvenile courts). In certain circumstances, a juvenile
court may waive jurisdiction and transfer a child to a district court or criminal
district court. Id. § 54.02. There is no such provision for transferring a child to a
county court; in fact, the only situations in which a juvenile may be transferred to a
district or criminal district court is if the juvenile “is alleged to have violated a
penal law of the grade of felony.” See id. § 54.02(a). Thus, three of the five
       3
          As noted above, after oral argument, appellant filed a letter brief. In it, she
acknowledged that, under the authority discussed above, the trial court had subject matter
jurisdiction over her.
       4
         During oral argument, the State again conceded that appellant’s date of birth was that
reflected on the information.
       5
        Several offenses are excepted from general rule, but prostitution is not one of the
exceptions. See Tex. Penal Code Ann. § 43.02(a)(1)–(7).

                                              6
alleged enhancing offenses are void because the county court at law lacked subject
matter jurisdiction to convict appellant of them.         See Tex. Penal Code Ann.
§ 8.07(a); Tex. Fam. Code Ann. §§ 51.04(a), 54.02(a); see also Nix v. State, 65
S.W.3d 664, 668 (Tex. Crim. App. 2001) (stating that a void judgment is a
“nullity” and can be attacked at any time and explaining that a judgment is void
only in very rare situations, usually due to a lack of jurisdiction).

      Because the information contains only two possibly valid enhancing
offenses, appellant’s plea of guilty was, at most, to a Class A misdemeanor
offense. See Tex. Penal Code Ann. § 43.02(c)(1) (providing that prostitution is
enhanced to “a Class A misdemeanor if the actor has previously been convicted
one or two times of an offense under this section”); cf. Pomier, 326 S.W.3d at 384
(determining that defendant was convicted of misdemeanor stalking under a
previous statute even though he was charged with felony stalking). The maximum
sentence for a Class A misdemeanor is a jail term not to exceed one year and/or a
fine not to exceed $4,000. Tex. Penal Code Ann. § 12.21.

      Here, appellant pleaded guilty and was sentenced as though convicted of a
state jail felony enhanced to a third degree felony and received three years’
confinement.     Appellant’s sentencing for a felony offense was outside the
maximum range available for a misdemeanor and therefore illegal. See Pomier,
326 S.W.3d at 384 (citing Mizzell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App.
2003) for the proposition that a sentence outside the maximum range of
punishment for that offense is illegal, and Speth v State, 6 S.W3d 530, 532–33
(Tex. Crim. App. 1999) for the proposition that a defendant has an “absolute and
nonwaiveable right to be sentenced within the proper range of punishment
established by the Legislature”). We conclude that her sentence is void because it
was above the statutory maximum for a Class A misdemeanor. See id.; Baker v.

                                           7
State, 278 S.W.3d 923, 927 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d)
(“Any court with jurisdiction can notice and take action upon an illegal or void
sentence at any time, even sua sponte.”); see also Ex parte Hernandez, 698 S.W.2d
670, 670–71 (Tex. Crim. App. 1985) (determining sentence void and remanding
for new sentencing because defendant was illegally sentenced).

                                III.    CONCLUSION

      We conclude that the trial court had jurisdiction over appellant’s case.
However, we reform the judgment adjudicating guilt to reflect that appellant was
convicted of a Class A misdemeanor, and affirm that portion of the judgment as
reformed.   We reverse the portion of the trial court’s judgment sentencing
appellant to three years’ confinement and remand for a new punishment
determination.




                                       /s/       Sharon McCally
                                                 Justice



Panel consists of Justices Jamison, McCally, and Wise.
Publish — Tex. R. App. P. 47.2(b).




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