                                 NO. 07-07-0481-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                  AUGUST 20, 2008

                        ______________________________


                           MICHELLE SMITH, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                      _________________________________

          FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;

                  NO. 4839; HONORABLE DAVID McCOY, JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, Michelle Smith, appeals the trial court’s order placing her on two years

deferred adjudication for the offense of tampering with governmental record. Appellant

presents one issue contending the trial court erred by refusing to grant her motion to
dismiss the indictment based on her assertion that the indictment failed to allege the

commission of a crime. Disagreeing with Appellant’s contention, we affirm.


                                       Background


       On June 29, 2005, Appellant was indicted for tampering with a governmental record

pursuant to § 37.10 of the Texas Penal Code. The indictment charged Appellant, in

pertinent part, as follows:


       Michelle Smith . . . did then and there knowingly make a false entry in a
       governmental record, to-wit: surety bond, said false entry being that the
       defendant has property in this State liable to execution worth forty thousand
       dollars.


       The indictment was filed in the 100th District Court of Childress County, Texas. On

January 16, 2007, Appellant filed a motion to dismiss the indictment for failure to allege the

commission of a crime. At a hearing held on October 22, 2007, the trial court denied

Appellant’s motion and accepted her plea of no contest. As a condition of her plea,

Appellant reserved her right to appeal the trial court’s denial of her motion to dismiss.

During her plea a Stipulation as to Evidence was filed wherein Appellant admitted that she

presented two surety bonds to the Childress County Sheriff which contained her oath as

surety, that she had non-exempt and unencumbered property in Texas worth forty

thousand dollars, and that said statement was false.1


       1
         Appellant further stipulated that she was married to the Childress County Sheriff
at the time she presented the surety bonds in question.

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                                        Discussion


       I.     Construction of Appellant’s Issue


       At the outset, we must attempt to construe the issue presented by Appellant.

Appellant contends the trial court abused its discretion by refusing to grant her motion to

dismiss based on her assertion that the State’s indictment “failed to allege the commission

of a crime.” On the one hand, if we construe that issue as contending the indictment failed

to allege the commission of a felony, then we must address certain jurisdictional issues,

including the waiver of indictment defects. On the other hand, if we construe that issue as

contending the indictment failed to allege the commission of any offense (i.e. a crime), then

we are faced with a different set of considerations, i.e., whether Appellant would have been

entitled to a directed verdict of acquittal under any construction of the indictment. Based

upon a reading of the motion to dismiss, the arguments of counsel, and the relief

requested, it is apparent that Appellant is contending that she is entitled to a dismissal of

the indictment because the allegations contained in the indictment, even if true, failed to

allege the commission of an offense. With this construction in mind, we will first address

the issue of the trial court’s subject-matter jurisdiction before addressing Appellant’s

contention that the indictment failed to allege the commission of an offense.




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II.    Jurisdiction of the Trial Court


       Where, as here, the record itself raises a question as to the trial court’s subject-

matter jurisdiction, we must address that issue, sua sponte, before proceeding to any other

issue. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996), overruled on other

grounds, State v. Medrano, 67 S.W.3d 892, 903 (Tex.Crim.App. 2002)(threshold issue of

jurisdiction must be disposed of before addressing substantive issues because subject-

matter jurisdiction cannot be conferred by agreement of the parties, but must be vested in

a court by constitution or statute). Where there is no jurisdiction, the power of the court to

act is “as absent as if it did not exist”; Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Crim.App.

1980) (quoting Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Crim.App. 1964)), and any

order or judgment entered by a court lacking jurisdiction is void. Nix v. State, 65 S.W.3d

664, 668 (Tex.Crim.App. 2001); Gallagher v. State, 690 S.W.2d 587, 589 n.1

(Tex.Crim.App. 1985).


       Under § 37.10 of the Penal Code, a person commits the offense of tampering with

a governmental record if he or she “knowingly makes a false entry in, or false alteration of,

a governmental record.” Tex. Penal Code Ann. § 37.10(a)(1) (Vernon Supp. 2007).2

Subsection (c)(1) classifies the above-quoted offense as a Class A misdemeanor.

However, the offense becomes a state jail felony if the actor’s intent is to defraud or harm



       2
       For convenience, remaining citations to the Texas Penal Code will be referred to
as “§ _______.”

                                              4
another, § 37.10(c)(1); and it becomes a third-degree felony if the governmental record

was (1) a public school record, report or assessment instrument, or (2) license, permit,

seal, title, letter of patent, or similar document issued by the government.           See §

37.10(c)(2). Therefore, for a defendant to be charged and convicted of felony tampering

with a governmental record, the State must additionally allege and prove that either the

defendant intended to defraud or harm another, or the governmental record was of the type

described.


       It is well settled that a constitutionally sufficient indictment is essential to vest a

district court with jurisdiction in a criminal case. See Tex. Const. art. V, § 12(b); State v.

Smith, 957 S.W.2d 163, 165 (Tex.App.–Austin 1997, no pet.). The indictment in this case

alleges that Appellant “knowingly [made] a false entry in a governmental record.” The

indictment does not allege that, when Appellant presented her surety bond and/or oath,

she intended to defraud or harm another. Nor does the indictment allege the governmental

record was of the type necessary to make the offense a third-degree felony. Although the

caption of the indictment describes the punishment grade as “SJF Degree Felony,” the

caption is not a part of the indictment but mere surplusage. Adams v. State, 222 S.W.3d

37, 53 (Tex.App.–Austin 2005, pet. ref’d); Thibodeaux v. State, 628 S.W.2d 485, 487

(Tex.App.–Texarkana 1982, no pet.). See 23 Tex. Jur. 3d Criminal Law § 2650 (2001).

Thus, we conclude the indictment in this case alleged a Class A misdemeanor offense of

tampering with a governmental record. See § 37.10(a)(1).



                                              5
       District courts have subject-matter jurisdiction only over felonies, misdemeanors

involving official misconduct, and misdemeanor cases transferred to the district court under

article 4.17 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 4.05

(Vernon 2005). In the instant case, the indictment does not allege a felony or other offense

for which a district court has jurisdiction. Thus, on its face, the indictment fails to satisfy

the constitutional requirement of subject-matter jurisdiction. See Teal v. State, 239 S.W.3d

172, 181 (Tex.Crim.App. 2007). However, our inquiry does not end there.


       The presentment of an indictment, signed by the grand jury foreman and presented

to the district court, which alleges that a person committed a misdemeanor offense vests

the district court with jurisdiction if the allegations are clear enough that the accused can

identify the offense alleged.      Id. at 179-81. (indictment charging defendant with

misdemeanor was sufficient to vest the district court with subject-matter jurisdiction where

indictment was capable of being construed as intending to charge a felony or a

misdemeanor for which the district court has jurisdiction). In Teal the indictment charged

the defendant with hindering apprehension.         The 9th Court of Appeals vacated the

defendant’s felony conviction after concluding that the district court lacked subject-matter

jurisdiction because the indictment failed to allege the additional statutory conditions

necessary to elevate the misdemeanor offense to a felony grade offense. Specifically, the

indictment failed to allege that Teal had knowledge that the person harbored or assisted

was facing arrest, charge, or had been convicted of a felony. After granting the State’s

petition for discretionary review, the Court of Criminal Appeals reversed the Court of

                                              6
Appeals holding that an indictment, although defective for failing to allege the conditions

that would elevate the offense to a felony, vests the district court with subject-matter

jurisdiction if “it accuses someone of a crime with enough clarity and specificity to identify

the penal statute under which the State intends to prosecute, even if the instrument is

otherwise defective.” Id. at 181.     The Court reasoned that the failure to allege the

conditions necessary to elevate the offense to a felony were substantive defects, subject

to waiver, that did not render the indictment “void.” Id. at 178.


       And that brings us back to our construction of Appellant’s motion to dismiss. Having

construed Appellant’s motion to dismiss as a motion that did not object to a defect in the

indictment (i.e., failure to allege a felony offense), we find that Appellant waived that

objection. Tex. Code Crim. Proc. Ann. art. 1.14(b). Our conclusion is further supported

by Appellant’s representation during oral arguments that it was a conscious decision not

to raise the misdemeanor versus felony argument.


II.    Failure to Allege the Commission of an Offense


       Appellant contends that even if the entry alleged (the representation that “[Appellant

had] property in this State liable to execution worth forty thousand dollars”) were untrue,

such entry would not constitute a false entry in a governmental record because the

representation was not required by the Code of Criminal Procedure article governing the

making of a surety bond. Alternatively, she argues that the entry could not have defrauded



                                              7
or harmed the person to whom it was given, i.e., the Childress County Sheriff, because the

sheriff knew it was false when made.


      Appellant cites no authority supporting her contentions. Without same, the issue

is inadequately briefed and, therefore, waived. See Tex. R. App. P. 38.1(h); Cardenas v.

State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000).


                                       Conclusion


      Appellant’s issue is overruled and the trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                    Justice

Do not publish.




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