                         IN THE COURT OF CRIMINAL APPEALS
                                     OF TEXAS

                                          NO. PD-010-07


                                SHERIFF K. AZEEZ, Appellant

                                                 v.

                                    THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTEENTH COURT OF APPEALS
                             HARRIS COUNTY

     P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and
W OMACK, J OHNSON, K EASLER, H ERVEY, H OLCOMB and C OCHRAN, JJ., joined.
M EYERS, J., did not participate.

                                         OPINION

       Although the charging instrument in this case alleged a misdemeanor offense in the

express terms of Section 38.10 of the Texas Penal Code,1 the Fourteenth Court of Appeals



       1

          TEX . PENAL CODE § 38.10(a) (“A person lawfully released from custody, with or without
bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly
fails to appear in accordance with the terms of his release.”). An offense under this provision is a
Class C misdemeanor where, as here, the offense for which the person was required to appear
(speeding) is punishable by fine only. Id., § 38.10(e). Therefore, punishment could not exceed a fine
of $500. See TEX . PENAL CODE § 12.23.
                                                                                        Azeez — 2

declared that the appellant was actually prosecuted and convicted under Section 543.009 of

the Texas Transportation Code.2 However, the jury assessed a punishment that, while it was

comfortably within the maximum fine permitted under the Penal Code provision, far exceeded

the permissible maximum fine under the Transportation Code provision. We granted the

appellant’s petition for discretionary review in order to sort out this anomaly.3 We will

reverse the judgment of the court of appeals.4

                          FACTS AND PROCEDURAL POSTURE

       On June 19, 2003, the appellant was pulled over by a Houston police officer and issued

a speeding citation. By signing the citation, the appellant promised to appear in Municipal

Court No. 15 on July 21, 2003. He failed to appear, and was charged by complaint with

“unlawfully and knowingly fail[ing] to appear . . . in accordance with the terms of his release

after having been lawfully released from custody on condition that he subsequently appear




       2

         TEX . TRANSP . CODE § 543.009(b) (“A person who wilfully violates a written promise to
appear in court, given as provided by this sub-chapter, commits a misdemeanor regardless of the
disposition of the charge on which the person was arrested.”). An officer who pulls a speeder over
is required to issue him a citation and release him, so long as he promises to appear. TEX . TRANSP .
CODE §§ 543.004(a)(1) & 543.005. The misdemeanor offense of failure to appear as promised as
per the conditions of the speeding citation is specifically spelled out in the Transportation Code as
a fine of no less than $1 and no more than $200. See TEX . TRANSP . CODE § 542.401. Thus, the
maximum fine for this offense is considerably lower than the maximum fine for the penal code
violation.
       3

        See TEX . R. APP . P. 66.3(f).
       4

        Azeez v. State, 203 S.W.3d 456, 460 (Tex. App.—Houston [14th] 2006).
                                                                                          Azeez — 3

in said court.” 5 The appellant was tried a year later for this offense in Houston Municipal

Court No. 8, and was convicted by a jury and fined $400. He appealed his conviction to the

County Criminal Court at Law No. 12 of Harris County, which affirmed his conviction. He

next appealed his conviction to the Fourteenth Court of Appeals, which likewise affirmed his

conviction, albeit “for different reasons” than those given by the County Criminal Court at

Law.6

        On the first day of his trial in municipal court, before jury selection commenced, the

appellant orally moved to quash the complaint, arguing that, whereas it charged him with an

offense in the express terms of the Penal Code provision, he should instead have been charged

under the Transportation Code provision, which he contended is “the more specific”

provision. The city prosecutor responded that the complaint had not charged the appellant

under either of these provisions, but had instead charged him with a violation of City of

Houston Ordinance 16-47.7 The appellant answered that he could not be charged under the

ordinance because the city “cannot legislate in areas there is a controlling State law, so that’s

void – even if he is under that ordinance.” Alternatively, he argued (as we understand him)


        5

        This language expressly tracks the language of Section 38.10(a) of the Penal Code.
        6

        Id. at 460.
        7

        HOUSTON , TEX . ORDINANCES § 16-47 (“It shall be unlawful for any person knowingly to fail
to appear for the trial of any charge against the person pending in the municipal courts of the city.”).
This offense is punishable by “a fine not exceeding $500.00; provided, however, that no penalty shall
be greater or less than the penalty provided for the same or a similar offense under the laws of the
state.” HOUSTON , TEX . ORDINANCES § 1-6(a).
                                                                                        Azeez — 4

that, in view of the city ordinance, he should not have been charged by a complaint that

seemed to be couched in terms of a Penal Code provision. Either way, he maintained, he

should not have been charged with an offense under Section 38.10(a) of the Penal Code, as

the complaint apparently had done. The trial court denied his motion to quash.

       Events at trial seemed to bear out the appellant’s claim that he had been charged under

the Penal Code offense. During voir dire, in testing the qualification of prospective jurors,

the appellant inquired whether they could all consider assessing punishment within the range

of a fine between $1 and $500–a range that is consistent with the Penal Code and city

ordinance offenses, but inconsistent with the range of punishment for the Transportation Code

offense. At the close of the evidence, the appellant again complained, this time in the context

of a motion for directed verdict, that “it’s not clear in the Complaint which offense the

Defendant is charged with.” It was apparently clear enough to the trial judge, however, when

he came to issue his written charge to the jury. There, without objection from either party,

the trial court expressly set out the offense with which the appellant had been charged in

terms of Section 38.10(a) of the Penal Code, and authorized a fine of up to $500.8

       During her final summation to the jury, the prosecutor read out loud to the jury part



       8

         The charge instructed the jury that “[o]ur statute provides that a person lawfully released
from custody with or without bail, on condition that he subsequently appear commits an offense if
he intentionally or knowingly fails to appear in accordance with the terms of his release. Any person
who violates the statute shall upon conviction be fined not more than Five Hundred Dollars
($500.00).” The application paragraph then instructed the jury, in the same terms as had been set
out in the complaint and which tracked the statutory language, to convict the appellant should it find
he committed the offense.
                                                                                       Azeez — 5

of the speeding citation that the appellant had signed, containing a warning that in the event

he should fail to appear as promised, a warrant would issue for his arrest and he would be

subject to an “ADDITIONAL CHARGE FOR FAILURE TO APPEAR WITH A FINE OF

$200.” She then urged the jury to “[a]ssess what fine you deem appropriate.” The jury

quickly found the appellant guilty and assessed a fine of $400. The appellant filed a motion

for new trial in which he argued, inter alia, that the trial court had erred in failing to grant his

motion to quash the complaint on the basis that it had charged him with the broad Penal Code

offense rather than the more specific offense under the Transportation Code. The trial court

denied the motion. The appellant reiterated this argument in his appeal to the County

Criminal Court at Law, which ruled in a one-page opinion that he had “waived” this and all

of his other challenges to the complaint because he had “made his objections after the start

of voir dire.”

       The court of appeals likewise affirmed the appellant’s conviction, but eschewed the

County Criminal Court at Law’s procedural-default rationale in favor of a ruling on the merits

of the appellant’s claim.9 The court of appeals held that the complaint did charge the

appellant with the Transportation Code offense,10 and did not charge him under either the city

ordinance or the Penal Code provision.11 We believe that in so holding, however, the court


       9

        Azeez v. State, supra, at 464-65.
       10

        Id. at 462-64.
       11

        Id. at 464-65.
                                                                                      Azeez — 6

of appeals erred in two significant respects. First, in holding that the appellant was actually

charged with the Transportation Code offense, the court of appeals ignored 1) the express

language of the complaint itself, 2) the fact that the court’s charge instructed the jury to

convict the appellant (if at all) under the express language of the Penal Code provision, and

3) the fact that the jury was authorized to, and did in fact, assess a fine in excess of that which

is permitted for the Transportation Code offense. Second, in the process of holding that the

Transportation Code provision and the Penal Code provision are not in pari materia, the court

of appeals misconstrued the scope of Section 38.10(a) of the Penal Code. We hold that the

two provisions should, in fact, be construed in pari materia, and that the trial court erred to

allow the appellant to be prosecuted and punished under the Penal Code provision instead of

the Transportation Code provision.

                                          ANALYSIS

                           Penal Code or Transportation Code?

       The court of appeals held that the complaint was sufficient to allege every element of

the Transportation Code offense.12 While we do not take issue with this proposition, it does

not necessarily follow that it was in fact the Transportation Code offense that appellant was

charged with, to the exclusion of either the city ordinance or the Penal Code provision. With

respect to the former, the court of appeals concluded that the complaint did not allege an

offense under Section 16-47 of the Houston City Ordinances because it alleged elements not



       12

        Id. at 462-64.
                                                                                     Azeez — 7

necessary to state an offense under that provision, and did not conclude with the phrase,

“Contrary to said ordinance,” as is permissible in complaints that charge only city ordinance

violations.13 We would add to these observations that the complaint also did not allege that

the appellant failed to appear for the “trial” of a charge pending in municipal court–only that

he failed to appear in municipal court according to the terms upon which he had been released

(without specifying what those terms were or setting out the citation in haec verba).14 We

therefore agree with the court of appeals that, notwithstanding the State’s persistent assertions

during trial and in its various appellate briefs, the complaint did not give the appellant

sufficient notice of (and may not even have been adequate to allege) a violation of the city

ordinance.

       But we reject the court of appeals’s conclusion that the complaint clearly charged the

appellant with the Transportation Code offense to the exclusion of the Penal Code offense.

If anything, the opposite is more accurate. The language of the complaint tracked Section

38.10(a) of the Penal Code word for word, whereas it merely paraphrased the elements

necessary to charge an offense under the Transportation Code. Moreover, the complaint was

not so clear in charging the Transportation Code offense that it sufficed to alert the trial court

that it should instruct the jury that it could convict, and, more critically, punish the appellant


       13

        Id. at 464. See TEX . CODE CRIM . PROC. art. 45.019(a)(7) (“if the offense charged is an
offense only under a municipal ordinance, [the complaint] may also conclude with the words
‘Contrary to the ordinance’.”).
       14

        See note 7, ante.
                                                                                   Azeez — 8

under that offense, rather than Section 38.10(a) of the Penal Code. Indeed, were it truly the

case, as the court of appeals concluded, that the appellant was actually tried for and convicted

of the Transportation Code offense, then the $400 fine the jury assessed and the trial court

imposed would be patently illegal, because it was in excess of the maximum ($200)

authorized by law. The appellant could complain of such an illegality in his sentencing at any

stage of appellate and post-conviction proceedings.15

       Still, the court of appeals believed that the appellant could not, in fact, have been

charged with the offense of failing to appear under Section 38.10(a) of the Penal Code.16 This

perception is based upon a misreading of a portion of the relevant statute. The court of

appeals opined:

               Section 38.10 of the Penal Code applies to persons who are in custody
       pursuant to a court order. * * * All of the elements of section 38.10 are
       included in the [appellant’s] complaint, but the definition of custody in
       [Chapter 38 of the Penal Code] specifically limits section 38.10 to those
       situations when a person is under arrest pursuant to a court order of this state
       or another state or when a person is under restraint by an agent or employee of
       a facility, such as a jail or prison. See T EX. P ENAL C ODE A NN. § 38.01(1)
       (Vernon 2003).17

The court of appeals went on to conclude that, because the appellant was arrested for speeding

rather than pursuant to a court order, Section 38.10(a) could not apply to make his failure to



       15

        Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).
       16

        Azeez v. State, supra, at 464-65.
       17

        Id.
                                                                                     Azeez — 9

appear unlawful. Because the Penal Code provision was not available to charge the appellant,

the court of appeals seems to have reasoned, he must have been charged under the

Transportation Code provision instead. We reject this reasoning.

       The court of appeals’s logic proceeds upon the premise that only an arrest that is based

upon a court order can lead to the kind of “custody” that is contemplated in Section 38.10(a)

of the Penal Code. The court of appeals derived this premise from the definition of custody

found in Section 38.01(1)(A) of the Penal Code, which reads as follows:

        In this chapter:

               (1) “Custody” means:

              (A) under arrest by a peace officer or under restraint by a public servant
       pursuant to an order of a court of this state or another state of the United
       States[.]

The court of appeals construed this definition to mean that, before it can constitute “custody”

for purposes of Chapter 38 of the Penal Code, a peace officer’s arrest of an individual must

occur “pursuant to an order of a court . . . .” But this construction is correct only if it can be

said that this prepositional phrase modifies both phrases that precede it, namely, “under arrest

by a peace officer” and “under restraint by a public servant.”           Because of a lack of

punctuation, it is unclear from the face of the statute whether it does or not.

       We have encountered just this kind of ambiguity before, in Ludwig v. State.18 There

we observed that “[g]enerally the presence of a comma separating a modifying clause in a



       18

        931 S.W.2d 239 (Tex. Crim. App. 1996).
                                                                                     Azeez — 10

statute from the clause immediately preceding is an indication that the modifying clause was

intended to modify all the preceding clauses and not only the last antecedent one.” 19

Consistent with this convention of punctuation (and assuming, as we did in Ludwig, that it

applies equally to phrases as clauses), if the court of appeals’s construction of the statute is

correct, we would expect the definition of custody to be punctuated as follows:

       under arrest by a peace officer or under restraint by a public servant, pursuant
       to an order of a court of this state or another state of the United States;

On the other hand, in Ludwig we also identified another punctuation convention, that

“[g]enerally, a comma should precede a conjunction connecting two coordinate clauses or

phrases in a statute in order to prevent the following qualifying phrases from modifying the

clause preceding the conjunction.”20 Following this convention, if the court of appeals’s

construction of the definition of custody is not the one the Legislature intended, we would

expect it to be punctuated as follows:

       under arrest by a peace officer, or under restraint by a public servant pursuant
       to an order of a court of this state or another state of the United States.

Unfortunately, the statutory language is not punctuated in either of these ways, and we cannot

tell from the plain language of the statute which meaning was intended. As in Ludwig, we

must go beyond the language of the statute.

       In construing the Penal Code, we are authorized to consider, inter alia, both the object


       19

        Id. at 241. For this proposition we cited 82 C.J.S. Statutes § 334 (1953), at 672.
       20

        Id. at 242, also citing 82 C.J.S., supra.
                                                                                 Azeez — 11

sought to be obtained and the consequences of a particular construction.21 We do not think

that the court of appeals’s limited construction of the definition of custody comports with the

intent of the legislators who enacted Chapter 38 of the Penal Code. When the definition of

custody was first enacted in Section 38.01 with the advent of the present Penal Code in 1973,

the Practice Commentary observed: “‘Custody’ is defined as restraint by a public servant

pursuant to court order or arrest by a peace officer.”22 As thus paraphrased, the definition is

unambiguous, and does not require that arrest by a peace officer be authorized by a court

order to constitute custody for purposes of Chapter 38.

       This definition is consistent with the Legislature’s use of the term in, e.g., current

Section 38.06(a) of the Penal Code, which makes it an offense to escape from “custody”:

              (A) A person commits an offense if he escapes from custody when he
       is:

                     (1) under arrest for, charged with, or convicted of an
              offense; or

                     (2) in custody pursuant to a lawful order of a court.

If the court of appeals’s construction of “custody” were correct, then subsections (a)(1) and

(a)(2) would be redundant, at least insofar as a person might “escape from custody when he

is . . . under arrest.” For if “custody . . . under arrest” meant, by definition, “arrest . . .

pursuant to a lawful court order,” as the court of appeals believed, then every escape while


       21

       TEX . GOV ’T CODE §§ 311.023(1) & (5) (Code Construction Act).
       22

       See TEX . PENAL CODE § 38.07 cmt. (Vernons 1974).
                                                                                         Azeez — 12

“under arrest” would also be covered by Section 38.06(a)(2), because every arrest would have

to be (in order to constitute “custody” under Section 38.01) pursuant to a court order. It is

clear to us that the Legislature intended no such redundancy, but instead, intended that it

should be an offense for a person to escape from a peace officer who has placed him under

arrest, regardless of whether that officer had a warrant or other court order.23 For these

reasons we hold that the court of appeals erred to conclude that, in order to be “under arrest”

for purposes of the definition of “custody” under Chapter 38 of the Penal Code, a suspect

would have to be arrested pursuant to a court order, and therefore the appellant must have

been charged with the Transportation Code offense.

                                     The Penal Code Offense

       Section 543.001 of the Transportation Code provides that “[a]ny peace officer may

arrest without warrant a person found committing a violation of this subtitle.”24 A peace

officer may, and in the case of a speeding violation, must, offer that person the option of

signing a written notice and promise to appear in court in lieu of an immediate appearance




       23

         In 1997, Subsections 9.01(a) and (b) of the Penal Code were amended to adopt the same
definition of “custody” as that contained in Section 38.01(1). See Acts 1997, 75th Leg., ch. 293, §2,
pp. 1308-09, eff. Sept. 1, 1997. Section 9.52 of the Penal Code makes justifiable the use of force
“to prevent the escape of an arrested person from custody . . . when the force could have been
employed to effect the arrest under which the person is in custody[.]” TEX . PENAL CODE § 9.52. We
doubt that the Legislature intended that this defensive issue should be available only to peace officers
who effectuated the arrest “pursuant to an order of a court.”
       24

       TEX . TRANSP . CODE § 543.001. See Boyett v. State, 487 S.W.2d 357, 359 (Tex. Crim. App.
1972); Nite v. State, 882 S.W.2d 587, 591-92 (Tex. App.—Houston [1st] 1994, no pet.).
                                                                                    Azeez — 13

before a magistrate.25 If the person signs the promise to appear, then he is immediately

released from detention.26 If the person refuses to sign a promise to appear, he shall be

immediately taken before a magistrate.27 Under these provisions, is a person “under arrest”

for purposes of Section 38.01(1)(A) of the Penal Code, up to the point that he signs the

promise to appear and is released, such that he can be prosecuted for failure to appear under

Section 38.10(a) of the Penal Code? We have never addressed this precise question, and our

precedents are ambiguous with respect to the exact nature and scope of the detention that

occurs when a motorist is pulled over for a traffic violation and agrees to sign a citation and

promise to appear to answer for the offense.

       Courts have often declared, under predecessor provisions to the Transportation Code,

that a peace officer may “arrest” anyone he witnesses committing any traffic offense “[e]xcept

for the offense of speeding.”28 But, strictly speaking, it is not true that the Transportation

Code does not authorize the “arrest” of speeders. It just does not permit speeders to be

“arrested” for any longer than it takes for the arresting officer to issue a citation (assuming


       25

        TEX . TRANSP . CODE §§ 543.003, 543.004(a)(1) & 543.005.
       26

        Id. § 543.005.
       27

        Id. § 543.002(a)(2).
       28

          See Tores v. State, 518 S.W.2d 378, 380 (Tex. Crim. App. 1975); Christian v. State, 592
S.W.2d 625, 628-29 (Tex. Crim. App. 1980); Vicknair v. State, 751 S.W.2d 180, 189 n.3 (Tex.
Crim. App. 1988) (Opinion on Appellant’s motion for rehearing); Coleman v. State, 45 S.W.3d 175,
179 n.2 (Tex. App.—Houston [1st] 2001, pet. ref’d); United States v. Castro, 166 F.3d 728, 732 n.6
(5th Cir. 1999).
                                                                                          Azeez — 14

the motorist is willing to sign the promise to appear).29 The seminal case construing the

earliest incarnation of these Transportation Code provisions clearly contemplated that a

motorist who was detained along the roadside for a speeding violation, and who agreed to

sign a promise to appear in lieu of being taken immediately before a magistrate, was

nevertheless initially “arrested” and then released from “custody” once he signed the

citation.30 Later cases established that such an arrest does not amount to a “full custodial

arrest,” such that it would authorize the arresting officer to conduct a search-incident-to-arrest

without first obtaining a search warrant.31 But the Transportation Code scheme clearly

regards it as some form, degree, or gradation of “arrest,” however fleeting. We said as much



        29

        TEX . TRANSP . CODE §§ 543.004 & 543.005.
        30

         Montgomery v. State, 145 Tex. Cr. R. 606, 609-10, 170 S.W.2d 750, 752 (1943). See also
Spencer v. Southland Life Insurance Company, 340 S.W.2d 335, 337 (Civ. App.—Ft. Worth 1960,
writ ref’d); Borner v. State, 521 S.W.2d 852, 854 (Tex. Crim. App. 1975). The enactment of the
Transportation Code in 1995 was not intended to make substantive changes to earlier statutory
provisions, but merely to recodify them. See Acts 1995, 74th Leg., ch. 165, p. 1871, eff. Sept. 1,
1995. And indeed, Section 543.005 of the Transportation Code still speaks in terms of “releasing”
a motorist from “custody” once he signs the citation promising to appear. TEX . TRANSP . CODE §
543.005. The Third Edition of Texas Jurisprudence has apparently construed the recodified
provisions of the Transportation Code pertaining to traffic violations accordingly, to authorize the
“arrest” of violators, including speeders, subject to “release . . . from custody” if and when the
violator signs the promise to appear on the citation. 22 Tex. Jur. 3d § 2277 (2001), at pp. 294-95.
        31

        E.g., Thomas v. State, 572 S.W.2d 507, 509 (Tex. Crim. App. 1976) (opinion on original
submission); Christian v. State, supra; Linnett v. State, 647 S.W.2d 672, 675 (Tex. Crim. App.
1983); Williams v. State, 726 S.W.2d 99, 101 n.1 (Tex. Crim. App. 1986). See also George E. Dix
& Robert O. Dawson, 40 TEXAS PRACTICE : CRIMINAL PRACTICE AND PROCEDURE § 10.14 (2d ed.
2001), at 579 (“If fealty to the statutory language [of the Transportation Code] requires that the
detention involved [in a “traffic stop”] be labeled an ‘arrest,’ it is not the sort of ‘custodial arrest’
that subjects the person to the incidental searches allowed by Fourth Amendment law.”).
                                                                                  Azeez — 15

in State v. Kurtz,32 where we concluded that “[t]he [Transportation] Code makes it clear that

its use of the term ‘arrest’ is not limited to custodial arrest.”33

       But does the “arrest” associated with a traffic stop equate with being “under arrest” for

purposes of the definition of “custody” in Section 38.01(1)(A) of the Penal Code, such that

a motorist who is released from “custody” under the provisions of the Transportation Code

but then fails to appear as promised in the citation has committed an offense under Section

38.01(a) of the Penal Code? We believe so. The Penal Code itself contains no definition of

“arrest” to compare to the apparent scope of “arrest” as used in the Transportation Code. But

the Code of Criminal Procedure provides that “[a] person is arrested when he has been

actually placed under restraint or taken into custody by an officer or person executing a

warrant of arrest, or by an officer or person arresting without a warrant.”34         We have

construed this provision to mean that, at least as a matter of state law, a restriction upon

personal liberty that amounts to less than “full custodial arrest” may nevertheless constitute

an “arrest.”35 And at least one court of appeals has construed a Transportation Code “arrest”


       32

        152 S.W.3d 72 (Tex. Crim. App. 2004).
       33

        Id. at 79.
       34

        TEX . CODE CRIM . PROC. art. 15.22.
       35

       Torres v. State, 868 S.W.2d 798, 801 (Tex. Crim. App. 1993); Hoag v. State, 728 S.W.2d
375, 379 (Tex. Crim. App. 1987); Brewster v. State, 606 S.W.2d 325, 327 n.6 (Tex. Crim. App.
1980); White v. State, 601 S.W.2d 364, 365-66 (Tex. Crim. App. 1980); Maldonado v. State, 528
S.W.2d 234, 237 (Tex. Crim. App. 1975); Hardinge v. State, 500 S.W.2d 870, 873 (Tex. Crim. App.
1973); Woods v. State, 466 S.W.2d 741, 743 (Tex. Crim. App. 1971).
                                                                                     Azeez — 16

to be of the type to justify prosecution for resisting arrest under another offense in Chapter

38 of the Penal Code.36 We conclude that the failure to appear to answer to a traffic offense

citation, including a speeding citation, does constitute a failure to appear under the terms of

a lawful release from “custody” for purposes of Sections 38.01(1)(A) and 38.10(a) of the

Penal Code, and is therefore an offense under the latter provision.

                             Are the Statutes In Pari Materia?

       We have described the doctrine of in pari materia in this way:

              It is a settled rule of statutory interpretation that statutes that deal with
       the same general subject, have the same general purpose, or relate to the same
       person or thing or class of persons or things, are considered to be in pari
       materia though they contain no reference to one another, and though they were
       passed at different times or at different sessions of the legislature.

              In order to arrive at a proper construction of a statute, and determine the
       exact legislative intent, all acts and parts of acts in pari materia will, therefore,
       be taken, read, and construed together, each enactment in reference to the other,
       as though they were parts of one and the same law. Any conflict between their
       provisions will be harmonized, if possible, and effect will be given to all the
       provisions of each act if they can be made to stand together and have
       concurrent efficacy.

               The purpose of the in pari materia rule of construction is to carry out the
       full legislative intent, by giving effect to all laws and provisions bearing on the
       same subject. The rule proceeds on the same supposition that several statutes
       relating to one subject are governed by one spirit and policy, and are intended
       to be consistent and harmonious in their several parts and provisions. Thus, it
       applies where one statute deals with a subject in comprehensive terms and


       36

         See Bruno v. State, 922 S.W.2d 292, 295 (Tex. App.—Amarillo 1996, no pet.) (in
prosecution for resisting arrest, where appellant was detained for a Transportation Code offense,
“until appellant was cited and allowed to leave, he was undergoing an arrest”). See TEX . PENAL
CODE § 38.03(a) (“a person commits an offense if he intentionally or knowingly obstructs . . . a
peace officer . . . from effecting an arrest . . . by using force against the peace officer[.]”).
                                                                                     Azeez — 17

       another deals with a portion of the same subject in a more definite way. But
       where a general statute and a more detailed enactment are in conflict, the latter
       will prevail, regardless of whether it was passed prior to or subsequently to the
       general statute, unless it appears that the legislature intended to make the
       general act controlling.37

The doctrine has been codified in Section 311.026 of the Government Code:

              (a) If a general provision conflicts with a special or local provision, the
       provisions shall be construed, if possible, so that effect is given to both.

              (b) If the conflict between the general provision and the special or local
       provision is irreconcilable, the special or local provision prevails as an
       exception to the general provision, unless the general provision is the later
       enactment and the manifest intent is that the general provision prevail.38

With respect to how the doctrine applies to penal provisions, we have observed:

               In construing penal provisions this Court has on a number of occasions
       found two statutes to be in pari materia, where one provision has broadly
       defined an offense, and a second has more narrowly hewn another offense,
       complete within itself, to proscribe conduct that would otherwise meet every
       element of, and hence be punishable under, the broader provision. In the case
       in which the special statute provides for a lesser range of punishment than the
       general, obviously an “irreconcilable conflict” exists, and due process and due
       course of law dictate that an accused be prosecuted under the special provision,
       in keeping with presumed legislative intent. Accordingly, where range of
       punishment under what is perceived to be the more specifically defined offense
       is less than that for the broader, . . . this Court has not hesitated to reverse
       convictions obtained under the broader provision.39

Or, as we stated more succinctly in a recent opinion, “a defendant has a due process right to


       37

        Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988), citing 53 Tex.Jur.2d, Statutes
§ 186 (1964), at 280.
       38

        TEX . GOV ’T CODE § 311.026.
       39

        Mills v. State, 722 S.W.2d 411, 414 (Tex. Crim. App. 1986).
                                                                                   Azeez — 18

be prosecuted under a ‘special’ statute that is in pari materia with a broader statute when

these statutes irreconcilably conflict.”40

       Section 38.10(a) of the Penal Code has “broadly defined” the offense of failure to

appear when conditionally released from custody, regardless of the basis for that custody.

Because a motorist who has been pulled over for the issuance of a speeding citation is “under

arrest” in contemplation of Section 38.01(1)(A)’s definition of “custody,” then a person in

the appellant’s position, who signed a promise to appear to answer for a speeding offense but

then failed to appear as promised, is subject to prosecution under this broad provision. But

Section 543.009(b) of the Transportation Code has more narrowly hewn an offense, complete

in itself, to specifically proscribe the failure to appear in court pursuant to a written promise

upon being arrested for an offense under Title 7, Subtitle C of the Transportation Code–an

offense which would otherwise meet every element of, and hence be punishable under, the

Penal Code provision. It is, therefore, a “special” provision in contemplation of Section

311.026 of the Code Construction Act and our case law construing the doctrine of in pari

materia. Moreover, because violation of Section 543.009(b) of the Transportation Code

carries a lesser range of punishment than the broader Section 38.10(a) of the Penal Code, the

statutes are in irreconcilable conflict. In that event, due process and due course of law require

that any defendant who fails to appear after promising to do so under the provisions of the

Transportation Code, upon arrest for an offense defined in Title 7, Subtitle C therein, be



       40

        Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim. App. 2006).
                                                                                 Azeez — 19

prosecuted for the Transportation Code offense, not the broader Penal Code offense. The

Legislature has clearly manifested a policy that a failure to appear in court to answer for a

traffic infraction should carry a less severe punishment than other failures to appear. Because

the appellant was prosecuted under the Penal Code, and assessed a fine in excess of what was

allowable for the Transportation Code offense, he suffered a violation of due process.

                                    Procedural Default

       Because it affirmed the appellant’s conviction on the merits, the court of appeals did

not address whether he may have procedurally defaulted his specific claim that he should have

been charged under the Transportation Code instead of the Penal Code. The County Court

at Law held, however, that the appellant “waived” this and other contentions on appeal

because he did not begin to voice them until jury selection had begun. The County Criminal

Court at Law cited no authority for this proposition. We note, however, that the Code of

Criminal Procedure requires that, in order to preserve error in a complaint, either formal or

substantive, a defendant must object “before the date on which the trial on the merits

commences[.]”41 We agree with the County Court at Law that, to the extent the appellant

claimed on appeal that, e.g., he did not have sufficient notice from the complaint of the

particular offense with which he was charged, that alleged error was not preserved. But we

disagree that the appellant’s renewed claim that the evidence showed that he was being

prosecuted and punished under the wrong statute came too late for appellate review.



       41

       TEX . CODE CRIM . PROC. art. 45.019(f).
                                                                                  Azeez — 20

       In Ex parte Smith,42 we held that a pre-trial in pari materia claim, brought first in a

motion to quash and then in a pre-trial application for writ of habeas corpus, was “premature,”

since the State had not “had an opportunity to develop a complete record during a trial.”43

The evidence at trial could conceivably have shown that Smith was not, in fact, guilty of the

special provision, and was therefore appropriately charged and tried under the broader

provision. Here the appellant made his in pari materia argument known to the trial court at

the outset of the trial, albeit prematurely, in a motion to quash. But he also reiterated his

argument once the State’s evidence was complete in his motion for directed verdict, and again

in a motion for new trial after the verdict, both of which were denied.

       On its face, the complaint itself was unobjectionable. It alleged a failure to appear

apparently under the terms of the Penal Code provision, but did not allege the particular

circumstances of the terms of his release or why he was in custody in the first place. It was

only after the State’s evidence disclosed that the case involved the failure to appear under the

terms of a speeding citation that a basis for the appellant’s in pari materia challenge became

manifest. When he reiterated that challenge in his motions for directed verdict and new trial,

the trial court was effectively put on notice that the appellant was being prosecuted under the

wrong statutory provision. The appellant thereby presented his objection to the trial court

clearly enough, and at a time when the trial court could have remedied the problem. See


       42

        185 S.W.3d 887 (Tex. Crim. App. 2006).
       43

        Id., at 893.
                                                                                   Azeez — 21

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). The trial court should have

taken steps to assure that the appellant was not being prosecuted, and more critically,

punished, under the wrong statutory provision.

                                       CONCLUSION

       The trial court erred to allow the appellant to be prosecuted under the Penal Code. The

court of appeals erred in allowing the appellant to be punished more severely than he could

have been under the Transportation Code–a defect in the judgment that can be raised at any

time, including for the first time on appeal.44 The County Court at Law erred to hold that the

appellant’s objections to prosecution under the Penal Code were untimely and therefore

“waived.” We therefore reverse the judgment of the court of appeals, and remand the cause

to the trial court for further proceedings not inconsistent with this opinion.45



Delivered:     March 5, 2008
Publish




       44

        See note 15, ante.
       45

        The appellant does not contend that the evidence was insufficient to support a conviction
under the Transportation Code provision.
