
    Roberto Yarit TREJO, Appellant v. The STATE of Texas.
    No. PD-0276-08.
    Court of Criminal Appeals of Texas.
    April 1, 2009.
    
      Ken Goode, Houston, for Appellant.
    Eric Kugler, Assistant District Attorney, Houston, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   WOMACK, J.,

delivered the opinion of the Court,

in which PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

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.

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 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.

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. Sometimes, 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 ease 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 0. 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 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.

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.

KELLER. P.J., filed a concurring opinion, in which MEYERS, J., joined.

JOHNSON, J., filed a concurring opinion.

KELLER, P.J.,

filed a concurring opinion in which MEYERS, J., joined.

In the past, this Court often demonstrated confusion over the concept of jurisdiction. We have said “jurisdiction” when we really meant “authority,” and we have failed to clearly distinguish the types of jurisdiction. When this Court previously had an expansive notion of fundamental error, it did not matter so much whether we characterized something as “jurisdiction” or what type of jurisdiction it was. But after Marin v. State and Almanza v. State, this Court no longer holds to expansive notions of fundamental error, and it has become increasingly important to label correctly whether an issue really involves a question of jurisdiction, and if so, what type of jurisdiction is implicated. Unfortunately, the Court’s opinion today continues to blur the lines between different types of jurisdiction, impeding the trend toward clearly and correctly analyzing what remains of the law of fundamental error.

We have recognized that there are two types of jurisdiction: the trial court’s jurisdiction to consider particular types of offenses (subject-matter jurisdiction) and the trial court’s jurisdiction over a particular defendant conferred by a charging instrument (personal jurisdiction). Before Garcia v. Dial, the two types of jurisdiction were sometimes muddled, with some cases suggesting that a trial court had no subject matter jurisdiction until personal jurisdiction attached to a case via the charging instrument, and other cases characterizing subject matter jurisdiction as the abstract authority of the court to decide cases involving certain types of subjects. In Garcia, we characterized subject matter jurisdiction in abstract terms: “Jurisdiction of the subject matter ... exists by-reason of the authority vested in the court by the Constitution and its statutes.” We referred to subject matter jurisdiction as existing in the district court simply because constitution and statute prescribe that district courts have “jurisdiction in [all] criminal cases of the grade of felony.” We characterized the existence of a valid charging instrument as a question of personal jurisdiction. This understanding was echoed in cases decided shortly after-wards. In Fairfield v. State, we explained that “ ‘jurisdiction’ is comprised ... of the power of the court over the ‘subject matter’ of the case, conveyed by statute or constitutional provision, coupled with ‘personal’ jurisdiction over the accused, which is invoked in felony prosecutions, by the filing of a sufficient indictment or information if indictment is waived.” In the 1982 case of Foster v. State, we relied upon the 1886 decision in Anderson, for the proposition that a court is a “court of competent jurisdiction” (thus possessing subject matter jurisdiction) even if personal jurisdiction had not attached due to a “fatally defective” indictment. And we have more recently articulated our adherence to Garcia’s understanding of subject matter and personal jurisdiction.

Clearly, the trial court in this case had subject matter jurisdiction over the aggravated assault offense because the law prescribes that district courts have jurisdiction over felonies and because aggravated assault is a felony. The remaining question is whether the trial court had personal jurisdiction over the defendant. As discussed above, unless waived, an indictment is necessary to vest the trial court with personal jurisdiction in a felony case. To be a valid indictment under current law, the instrument in question must charge a person with the commission of an offense. The key question here is whether personal jurisdiction is offense-specific. Does an indictment alleging a particular offense vest jurisdiction with respect to only that offense? Though older cases indicated that the answer was “yes,” in light of more recent cases, I would conclude that it is “no.”

Subject matter jurisdiction is offense-specific because it is about what type of offense can be tried in the court. But personal jurisdiction is person-specific; it determines whether the court can exercise power over a particular defendant. A trial court that has acquired personal jurisdiction over a particular defendant may nevertheless lack authority to try a defendant for offenses not covered by an indictment, but that is not the same thing as saying there is no jurisdiction over the person of the defendant. Our opinion in Almanza, which was decided after our older jurisdictional cases, also undercuts the holding in those cases. There, we criticized the notion that the submission of an unpleaded theory of liability for the offense charged constituted fundamental error, requiring reversal without respect to whether the defendant was harmed.

There are other situations that suggest that a jurisdictional defect is not at issue here. In the civil arena in Texas, issues that were not pleaded may be tried by consent if submitted without objection in the jury charge. In criminal cases in New York, the failure to object to the submission of a lesser-included offense waives any complaint that it is not in fact a lesser-included offense. In a plurality opinion in Bradley v. State, Judge Clinton suggested that there may be estoppel consequences from failing to object to the submission of a lesser-included offense. We need not adopt the particular holdings in these cases to recognize that they indicate that the submission of a purported lesser-included offense that is outside the State’s pleadings is not a jurisdictional defect.

I would hold that the submission to the jury of the offense of aggravated assault and the resulting judgment of conviction for that offense does not constitute a jurisdictional defect. I concur only in the Court’s judgment.

CONCURRING OPINION

JOHNSON, J.,

filed a concurring opinion.

Yet again, we consider a case in which a party has confused “jurisdiction” with “authority.” As the opinion of the Court points out, the trial court had both subject-matter jurisdiction over the offense and personal jurisdiction over appellant. In that opinion, the state receives the right answer to the wrong question; it appears that the state really wants to know whether the trial court had authority to do what it did, but asks the question in terms of jurisdiction.

As the opinion of the Court states, “the trial court may have erred in its charge to the jury.” But if the alleged error was including the lesser offense of aggravated assault in the jury charge, the question is first whether the indictment authorized the instruction and second, whether the evidence supported giving the instruction, not whether the district court has jurisdiction over a felony offense.

I join the opinion of the Court. 
      
      . 851 S.W.2d 275, 279-80 (Tex.Crim.App.1993)(categorizing the system as containing three different types of rules for the purpose of error preservation); see also 
        
        Sanchez v. State, 120 S.W.3d 359, 365-66 (Tex.Crim.App.2003)(Marin a watershed decision in the law of error preservation).
     
      
      . 686 S.W.2d 157 (Tex.Crim.App.1985).
     
      
      . Teal v. State, 230 S.W.3d 172, 181 (Tex.Crim.App.2007); Garcia v. Dial, 596 S.W.2d 524, 527-28 (Tex.Crim.App.1980). Some older cases have suggested a third type of jurisdiction: to render a particular judgment. Hultin v. State, 171 Tex.Crim. 425, 435, 351 S.W.2d 248, 255 (1961); Reed v. State, 148 Tex.Crim. 409, 412, 187 S.W.2d 660, 662 (1944). In Davis v. State, we explained that this type of jurisdiction consisted of the trial court’s “authority to render a particular kind of judgment (such as an order of commitment or a judgment for money damages).” 956 S.W.2d 555, 558 (Tex.Crim.App.1997). That type of jurisdiction is not at issue in this case.
     
      
      . See Reed, 148 Tex.Crim. at 412-14, 187 S.W.2d at 662-63 (out-of-state proceedings); Ringer v. State, 135 Tex.Crim. 573, 575-76, 121 S.W.2d 364, 366 (1938)(dominant jurisdiction); Parr v. State, 108 Tex.Crim. 551, 1 S.W.2d 892 (1928)(defendant did not personally appear before the court); Ex parte Reynolds, 35 Tex.Crim. 437, 438, 34 S.W. 120, 121 (1896)(grand jury composed of fourteen men instead of the required twelve).
     
      
      . Hultin, 171 Tex.Crim. at 435, 351 S.W.2d at 255 ("The expression 'subject matter,’ as used with reference to the problem of jurisdiction, in criminal law, refers to the offense.”); Ex parte Lawson, 76 Tex.Crim. 419, 421, 175 S.W. 698, 699 (1915)(quoting Bailey on Habeas Corpus: “So that there is a more general meaning to the phrase, ‘subject matter,' in this connection, than power to act upon a particular state of facts. It is the power to act upon the general, and, so to speak, abstract question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power. Jurisdiction of the subject matter is the power lawfully conferred to deal with the subject involved in the action.”); Cordway v. State, 25 Tex. Ct.App. 405, 417, 8 S.W. 670, 672 (1888)(district court "had jurisdiction of the subject matter of the prosecution” against the defendant, "that is, the offense of murder,” but "did not have jurisdiction over his person to try him for said murder, because he had not been extradited for that particular murder.”); Anderson v. State, 24 Tex.App. 705, 715-17, 7 S.W. 40 (1886)("court had jurisdiction of the offense, the subject matter of litigation,” but jurisdiction had not "attached in the particular case" because the complaint was defective; nevertheless, court was a "court of competent jurisdiction” so that an acquittal by a jury would bar reprose-cution under the Texas Constitution’s double jeopardy clause). See also Ex parte Ward, 560 S.W.2d 660, (Tex.Crim.App.1978) (Douglas, J., dissentingXCiting 21 C.J.S. Courts § 22 (1940) for the proposition that "competent jurisdiction” is susceptible of two meanings, including "jurisdiction over the subject matter, a sort of authority in the abstract, to hear and determine a case”); Ex parte Clear, 573 S.W.2d 224, 229 n. 6 (Tex.Crim.App.1978)(dominant jurisdiction "is concerned primarily with jurisdiction over the person (rather than subject matter jurisdiction)”).
     
      
      . 596 S.W.2d at 527.
     
      
      . Id. (quoting Tex. Const., Art. 5, § 8 and Tex.Code Crim. Proc. art. 4.05)(bracketed material in constitutional provision).
     
      
      . Id.
      
     
      
      . 610 S.W.2d 771, 779 (Tex.Crim.App.1981).
     
      
      . Foster, 635 S.W.2d 710, 716-17 (Tex.Crim.App.1982)(holding that a legal sufficiency review must still be conducted even if the indictment was fatally defective). Before the Texas Constitution was amended in 1985, caselaw held that a fatally defective indictment failed to confer (personal) jurisdiction on the trial court. See Studer v. State, 799 S.W.2d 263, 267 (Tex.Crim.App.1990).
     
      
      . Nix v. State, 65 S.W.3d 664, 668 (Tex.Crim.App.2001)("personal jurisdiction over the defendant" is lacking when "the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument” while "the trial court lacks subject matter jurisdiction over the offense charged” when, for example, "a misdemeanor involving official misconduct is tried in a county court at law”).
     
      
      . Tex.Code Crim. Proc. art. 4.05 (jurisdiction of district court); Tex. Penal Code § 22.02 (aggravated assault).
     
      
      . See also King v. State, 473 S.W.2d 43, 51-52 (Tex.Crim.App.1971).
     
      
      . Cook v. State, 902 S.W.2d 471, 479-80 (Tex.Crim.App.1995).
     
      
      . See Houston v. State, 556 S.W.2d 345, (Tex.Crim.App.1977)(rape was not in fact a lesser-included of burglary; trial court had no jurisdiction to enter judgment for rape on burglary indictment; citing cases); Van Arsdale v. State, 149 Tex.Crim. 639, 640-43,198 S.W.2d 270, 271-73 (1946)(when case was called for trial, parties agreed to reduce offense of robbery by assault to theft from a person, but theft from a person was not a lesser-included offense of robbery by assault, so the trial court was without jurisdiction); see also Munson v. State, 21 Tex. Ct.App. 329, 330, 17 S.W. 251, 251 (1886)(assault with intent to murder was not a lesser-included offense of robbery and so the defendant "could not legally be convicted of such offense"). For this proposition, the court of appeals also cites our more recent case of Jacob v. State, 892 S.W.2d 905 (Tex.Crim.App.1995), see Trejo, 242 S.W.3d at 52, but Jacob addressed only whether the submitted "lesser” offense was in fact included within the offense charged; it did not address whether the error in submission was jurisdictional in nature. See Jacob, passim.
      
     
      
      
        .Id. at 172-74 (Tex.Crim.App.1985)(discuss-ing Robinson v. State, 553 S.W.2d 371 (Tex.Crim.App.1977) as an example of a case that "engender[sj disrespect for the courts and the law" by ignoring "common sense”). Though the Almanza court said that "due process would be violated per se by convicting a person for murder when he had been indicted for a totally different offense such as robbery,” it held that the same could not be said for alternate uncharged theories of the offense that was charged in the indictment. Id. at 173. Though the theory aggravated assault submitted in this case was not a lesser-included offense of the aggravated sexual assault that was charged, both offenses were closely related in that they both referred in some way to serious bodily injury (intended or inflicted).
     
      
      . Southwestern Resolution Corp. v. Watson, 964 S.W.2d 262, 264 (Tex.1997).
     
      
      . People v. Ford, 62 N.Y.2d 275, 476 N.Y.S.2d 783, 465 N.E.2d 322 (Ct.App.1984)(based on statute).
     
      
      . 688 S.W.2d 847, 853 (Tex.Crim.App.1985)("By invoking the benefit of the lesser included offense at trial in not objecting to its submission to the jury, an accused will be estopped from then complaining on appeal that the evidence failed to establish all the elements of the offense.”); but see McKinney v. State, 207 S.W.3d 366, 374 (Tex.Crim.App.2006)(limiting estoppel rule with respect to evidentiary sufficiency claims to "voluntary manslaughter” scenario).
     
      
      . Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App.2007).
     