            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS

                                      No. PD-0276-08



                          ROBERTO YARIT TREJO, Appellant

                                             v.

                                 THE STATE OF TEXAS



                On Discretionary Review of Case 14-06-00168-CR of the
                             Fourteenth Court of Appeals,
                                    Harris County



       W OMACK, J., delivered the opinion of the Court, in which P RICE, J OHNSON,
       K EASLER, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. K ELLER. P.J., filed
       a concurring opinion, in which M EYERS, J., joined. J OHNSON, J., filed a
       concurring opinion.


       The indictment of the appellant alleged the offense of aggravated sexual assault.

The court’s charge authorized the jury to convict for that offense or for any of three lesser

offenses: sexual assault, aggravated assault, or assault. The appellant did not object to the

submission of the lesser offenses. The jury found the appellant guilty of the lesser offense

of aggravated assault.
                                                                                         (Trejo - 2)

       On appeal, the appellant said that, because aggravated assault was not a lesser-

included offense of the aggravated sexual assault that was alleged, the trial court did not

have jurisdiction to convict him of that lesser offense. The Fourteenth Court of Appeals

agreed; it held that the judgment of conviction was void and ordered the entry of a

judgment of acquittal for the offense of aggravated sexual assault. Trejo v. State, 242

S.W.3d 48 (Tex. App. – Houston [14th Dist.] 2007).

       We granted review of two issues: whether “an appellant may appeal an error in the

jury instructions when the appellant failed to make a record showing the source of the

alleged error and where the appellant himself could have invited the error,” and whether

“the trial court lacked jurisdiction to instruct the jury on the offense of aggravated

assault.” (Petition at ii.)

       This case presents some of the questions that we recognized, but of which we did

not did grant review, in Hall v. State, 225 S.W.3d 524, 537 (Tex. Cr. App. 2007): whether

“the issue of error in the charge was preserved for appellate review, [whether] a judgment

of guilt of a lesser offense that was not included in the alleged offense is void because a

trial court has no jurisdiction to enter such a judgment, [and whether] the appellant

suffered harm that required reversal.”

                          Preservation of Complaint about the Charge

       As to the preservation of a complaint about error in the charge, we recognized in

the landmark decision of Almanza v. State, 686 S.W.2d 157 (Tex. Cr. App. 1984), that
                                                                                           (Trejo - 3)

Article 36.19 of the Code of Criminal Procedure sets two standards for appellate review

of error in the charge: one for error that was preserved and the other for error that was not

preserved. Implicit in that decision is our recognition that (by force of the statute if

nothing else) a complaint of error in the court’s charge may be raised for the first time on

appeal.

       This does not mean that a party may benefit from an error that was committed at

his behest. We have held that a defendant may not complain of a charge that he requested.

Tucker v. State, 771 S.W.2d 523, 534 (1988). We also have held that a defendant may not

benefit from a lesser-included-offense instruction and then attack his conviction of that

lesser-included offense on the ground that it was barred by limitation. State v. Yount, 853

S.W.2d 6, 9 (1993). The doctrine of estoppel would prevent the party from presenting

such a claim. If the record showed that the appellant requested the charge on the lesser

offense of aggravated assault, he would be estopped from complaining of its inclusion in

the charge. But the mere absence of a showing of responsibility for the inclusion of the

charge on the lesser offense does not give rise to estoppel. But those holdings do not

control this case. The record does not show that the appellant requested the lesser-

included-offense charge. And the appellant is not raising the defense of limitation.
                                                                                         (Trejo - 4)

                                          Jurisdiction

       Subject-matter jurisdiction depends not only on the grant of authority to the trial

court in the Constitution and the statutes, but also on its being invoked for the particular

case before the court by the State’s pleadings.

       As a treatise says, “‘Jurisdiction’ is used in a number of different senses. Some-

times, courts discuss whether a trial court had ‘jurisdiction’ over a case. They may

conclude, for example, that a court did not have jurisdiction over a case because of a

defect in the charging instrument even though it had subject matter jurisdiction over the

kind of case (e.g. felony) that was brought. …

       “Jurisdiction is also used to refer to the relationship between the case and the

defendant—personal jurisdiction. For example, the defendant must be present at the

beginning of his or her trial for the trial court to have personal jurisdiction over that

person and to enter a binding judgment in the case.” George E. Dix & Robert O. Dawson,

40 Texas Practice: Criminal Practice and Procedure § 1.02 (2001).

       So subject-matter jurisdiction requires both a general grant of authority to the trial

court and a charging instrument that invokes that jurisdiction over the particular case.

       In Garcia v. Dial, 596 S.W.2d 524, 530 (1980) Judge Clinton recognized the

second, particular requirement of an indictment or information that charged an offense

within the jurisdiction of the court: “Furthermore, it is well settled that a valid indictment,

or information if indictment is waived, is essential to the district court’s jurisdiction in a
                                                                                        (Trejo - 5)

criminal case. … American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex. Cr. App.

1974); Bruce v. State, 419 S.W.2d 646 (Tex. Cr. App. 1967) ….” Those two precedents

spoke to the requirement of an indictment that invoked the subject-matter jurisdiction of

the trial court in the particular case.

       The Court’s opinion in American Plant Food Corp. said, “If the charge [that is, the

charging instrument – an indictment or information] alleges an offense was committed by

the defendant, then it is sufficient in law to support a verdict of guilty if one be rendered

thereon. If it does not so allege, then it is utterly insufficient and any conviction based

thereon is void. [FN1:] A void conviction may be challenged at any time and thus an

exception to the substance of the State’s pleading, as set forth in Article 27.08, supra, may

be raised for the first time on appeal.” 508 S.W.2d, at 603.

       The Court’s opinion in Bruce said, “When the jurisdiction of a district court is

invoked by the return of an indictment charging a felony offense which includes a

misdemeanor, and upon motion of the state the charge is reduced to a misdemeanor, the

… jurisdiction of the district court, having attached by reason of the felony charge, the

district court retains jurisdiction of the case to its final determination.” 419 S.W.2d, at

647.

       Although the trial court may have erred in its charge to the jury, it had jurisdiction

to commit the error.
                                                                                      (Trejo - 6)

                                            Harm

         The standard of harm is that for unobjected-to error in the charge: whether “the

error is so egregious and created such harm that he has not had a fair and impartial trial –

in short[,] egregious harm. … [T]he actual degree of harm must be assayed in light of the

entire jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel and any other relevant information releaved

by the record of the trial as a whole.” Almanza, 686 S.W.2d, at 171.

         The case will be remanded to the Court of Appeals for consideration of the issue of

harm.

         The judgment of the Court of Appeals is vacated and the case is remanded to that

court.


Delivered April 1, 2009.
Publish.
