State v. Boseman

805 S.W.2d 922, 1991 WL 46879
CourtCourt of Appeals of Texas
DecidedMarch 6, 1991
Docket09-90-016 CR, 09-90-017 CR
StatusPublished
Cited by8 cases

This text of 805 S.W.2d 922 (State v. Boseman) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Boseman, 805 S.W.2d 922, 1991 WL 46879 (Tex. Ct. App. 1991).

Opinions

OPINION

BROOKSHIRE, Justice.

This instant appeal arises out of the entry of an order signed by the County Court of Jefferson County at Law No. 2. The challenged order dismissed the two complaints which had previously been lodged against the Appellee Reginald P. Boseman. The presiding judge of the County Court of Jefferson County at Law No. 2 ruled that his court lacked jurisdiction.

The Appellee (“Boseman”) was initially charged in two separate complaints with providing or furnishing alcohol to a minor individual. These complaints were initially filed against Boseman in the Municipal Court for the City of Beaumont. Later, on October 13, 1989, the Municipal Court judge granted the motions to dismiss both the complaints on the grounds that the complaints were the result of Discriminatory Prosecution. No record was made of that hearing. That Corporation Court is not a court of record.

The first complaint is based upon a Beaumont Police Department’s affidavit for arrest warrant. The affidavit was sworn to by a peace officer. The sworn affidavit spelled out that Boseman had committed the initial offense of furnishing alcoholic beverage to a minor on or about the first day of June, 1988, in Beaumont. The alcoholic beverage was furnished to one R.L.Q. and Boseman knew that R.L.Q. was not of the legal age to consume alcoholic beverages. In a part of the complaint it was revealed that the complaint was based on Tex.Alco.Bev.Code Ann. § 106.06 (Vernon 1978). The complaint alleged with more specificity that Boseman had purchased an alcoholic beverage for, or gave, or knowingly made available an alcoholic beverage to a minor when he was not the minor’s parent, guardian, or spouse, or an adult in whose custody the minor had been committed by a court. The complaint alleged Boseman was visibly present when the minor possessed and consumed the alcoholic beverage.

Apparently, the Municipal Court judge had previously ordered the issuance of a “failure to appear” charge and ordered the issuance of a warrant of arrest for Bose-man. These matters are reflected in our Cause No. 09-90-016 CR. There also appears an order of the Municipal Court to the general effect that the cause came on and was called for trial and both parties appeared and announced “ready”, and a trial by jury was waived and the court adjudged the complaint against defendant should be dismissed. However, it appears from the printed forms used that there may have been some confusion as to a fine or court cost. Nevertheless, a commitment was issued, apparently. It appears that the judge of the Municipal Court signed the said order by the use of what appears to be a rubber stamp of his signature.

Concededly, the “transcript on appeal” is clearer, more readable, and unambiguous. This transcript clearly shows that Judge John Paul Davis dismissed the complaint on October 13,1989, and a judgment of dismissal was signed and entered on the same date. A timely notice of appeal was filed on October 27, 1989, by the State in the Jefferson County Court at Law. The notice of appeal properly identified the cause of action. The notice, of course, was in writing and gave notice of appeal pursuant to Tex.Code CRIM.PROC.Ann. art. 44.01. The notice, itself, was dated October 18th. It was initially signed by the Assistant City Attorney of Beaumont. The notice of appeal was properly served by mail on the attorney of record for Boseman. The certificate of service is dated October 18,1989.

The Appellee’s attorney gave notice of a setting on the hearing to dismiss the State’s appeal. That hearing in the County [924]*924Court of Jefferson County at Law No. 2 was set for November 14,1989, at 1:80 p.m. The defendant, Appellee here, in his written motion to dismiss for lack of jurisdiction had a basic thrust. Boseman’s basic allegations and contentions were that he had been originally allegedly charged in two separate complaints with providing alcohol to a minor with the offense dates alleged to have been May 5, 1988, and June 1, 1988.

Boseman further alleged that he had been singled out for prosecution when others similarly situated would not have been prosecuted. We have no statement of facts on these allegations. He alleged that he, as the defendant, was a Beaumont police officer, and he was indefinitely suspended on December 8, 1988. Further, that during the course of the suspension proceedings there had never been any suggestion, according to Boseman, that he had provided alcohol to a minor on May 5, 1988, or June 1, 1988, or at any other time. Boseman had vigorously contested his suspension. The suspension matter had gone to arbitration and through arbitration it was ordered that Boseman be reinstated to his position as a police officer on or about July 15, 1989.

Then, on August 14, 1989, Boseman was required to “submit to an affidavit in the Internal Affairs Department of the Beaumont Police Department.” Thereafter, he was indefinitely suspended, the date of suspension being August 31, 1989. Appellee’s motion reflects that the current suspension is based in part on the current charges against him. The current charges were filed on August 24,1989. Boseman alleged in his motion that the current charges were filed in bad faith and in retaliation for the arbitration proceedings. Boseman alleged that after a lengthy hearing the Municipal Court Judge granted the motion to dismiss. It should be noted that the complaints in the Municipal Court were dismissed. The hearing did not go to the merits, apparently, and Boseman was not adjudged to be either guilty or not guilty of the alcoholic beverages to minors charges, as we understand the transcript. Some of the documents and some of the parts of the documents are difficult to decipher and some parts are barely legible. Some parts are not legible. We refer here to the transcript.

In his motion, Boseman concedes that Tex.Code CRIM.PROC.Ann. art. 44.01 gives the State in a criminal case a limited right of appeal, including an appeal from the dismissal of an indictment, information, or complaint. Clearly, the pleadings in the Municipal Court that were adverse to Boseman were “complaints”. However, on the other hand, the Appellee contends that all the applicable rules of procedure for prosecutions in the Municipal Court are contained in Chapter 45 of the Texas Code of Criminal Procedure; and that according to article 45.10, an appeal from the Municipal Court shall be to the County Court and shall be a trial de novo. No trial de novo was had in the county court. Appel-lee argues that this section then contemplates only the right of an appeal by a defendant, because, he further argues, article 45.47 provides that in no case shall the State be entitled to a new trial. We conclude the State is seeking something very different from a new trial. It is seeking an appeal on the merits of the matter de novo to the County Court of Jefferson County at Law No. 2. No such hearing, trial or appeal was afforded to the State.

Clearly, neither the State nor the prosecuting attorney has asked for a new trial before the Municipal Court Judge.

It is significant and interesting to point out that the Texas Code of Criminal Procedure of 1965, article 44.01 entitled “Appeal by state”, (a), reads:

The state is entitled to appeal an order of a court in a criminal case if the order:

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State v. Boseman
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State v. Boseman
805 S.W.2d 922 (Court of Appeals of Texas, 1991)

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Bluebook (online)
805 S.W.2d 922, 1991 WL 46879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-boseman-texapp-1991.