                                                                    WITHDRAWN 4-28-10
                                                                      REISSUED 4-28-10




                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-09-00170-CR

JOSE SILVERIO LUGO,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 24229


                           MEMORANDUM OPINION


       Jose Silverio Lugo appeals from a conviction for violating a protective order

pursuant to Texas Penal Code Section 25.07. TEX. PEN. CODE ANN. § 25.07 (Vernon

2003). The trial court assessed punishment at confinement for eight (8) years in the

Texas Department of Criminal Justice – Institutional Division.           See id. (g).   Lugo

complains that the trial court lacked subject matter jurisdiction over the cause because

the indictment as alleged failed to state a felony offense, and, in the alternative, that his

sentence is illegal because he was convicted of a misdemeanor offense and sentenced to

felony punishment. Because we hold that complaints about the indictment must be
raised prior to the empanelling of the jury and the sentence is not illegal, we affirm the

judgment of the trial court.

        In his first issue, Lugo complains that the district court lacked subject matter

jurisdiction over this cause because the indictment did not allege a felony offense, but

merely a misdemeanor offense. Lugo did not object to the indictment prior to trial. In

1985, Section 1.14(b) of the Code of Criminal Procedure was amended to require that all

defects in indictments, whether of form or substance, must be objected to prior to

empanelling the jury in order to preserve the objection for appeal. See TEX. CODE CRIM.

PROC. ANN. § 1.14(b) (Vernon 2005). The Texas Court of Criminal Appeals has held that

this extends to matters of subject matter jurisdiction in instances such as this, where it is

evident from the face of the indictment that the State intended to charge him with a

felony offense. See Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009) (citing

Teal v. State, 230 S.W.3d at 182 (Tex. Crim. App. 2007)). Further, Lugo’s application for

probation filed with the trial court indicates his understanding that he was on trial for a

third degree felony.      We find that Lugo waived any complaint regarding the

defectiveness of the indictment by failing to bring his objection to the attention of the

trial court. See TEX. CODE CRIM. PROC. ANN. § 1.14(b) (Vernon 2005); see also Kirkpatrick,

279 S.W.3d at 329. Lugo’s first issue is overruled.

        In his second issue, Lugo argues that his sentence is void because it imposes

felony punishment for a misdemeanor conviction. See Ex parte McIver, 586 S.W.2d 851,

854 (Tex. Crim. App. [Panel Op.] 1979) (holding that when statute authorized jury to

recommend probation as to a period of confinement and impose a fine, a sentence that

did the opposite by assessing confinement and recommending probation of a fine was


Lugo v. State                                                                          Page 2
deemed void). Lugo was sentenced to eight (8) years imprisonment which is within the

range of punishment for a third degree felony offense. See TEX. PEN. CODE ANN. § 12.34

(Vernon 2003).

        While this issue is not jurisdictional, it does turn on the same question as issue

number one--whether the indictment alleged a felony or a misdemeanor. Thus, the

same reasoning would apply here and would produce the same result; that the

indictment did intend to allege a felony. Further, Lugo did not raise any alleged charge

error in this appeal complaining of any language Lugo contends is erroneous, he makes

no contention that the evidence is legally or factually insufficient, nor does he assert

that he received ineffective assistance of counsel. The punishment assessed was in

agreement with the crime charged by the indictment that had not been objected to

before trial, that being a third degree felony violation of a protective order. See Holley v.

State, 167 S.W.3d 546, 548-49 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

Therefore, the punishment assessed was within the range of punishment for a third

degree felony, which is two to ten years’ confinement in the Texas Department of

Criminal Justice and a fine not to exceed $10,000.00. TEX. PEN. CODE ANN. § 12.34

(Vernon 2003). We overrule Lugo’s second issue.

Conclusion

        We find that any complaint regarding Lugo’s indictment was required to be

raised to the trial court prior to the empanelling of the jury and that the sentence

imposed was not illegal. We affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice
Lugo v. State                                                                          Page 3
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed December 30, 2009
Do not publish
[CR25]




Lugo v. State                                   Page 4
