Opinion
No. 05-03-01604-CR
Opinion issued May 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 11, Dallas County, Texas, Trial Court Cause No. MA-01-29461-N. Vacated and Rendered.
Before Justices MORRIS, WHITTINGTON, and JAMES.
MEMORANDUM OPINION
Mickey Turner appeals his conviction of disorderly conduct. In a trial before the court, appellant entered a plea of not guilty to the charged offense of violating a protective order. The court determined appellant did not violate the protective order, but it convicted appellant of disorderly conduct and assessed a fine of $100.00. Appellant raises two issues on appeal, complaining the trial court lacked jurisdiction and the evidence was legally insufficient to support the verdict. We vacate the trial court's judgment and render judgment that appellant is acquitted of the charged offense of violation of a protective order. In his first issue, appellant complains the trial court did not have jurisdiction to render judgment on disorderly conduct because disorderly conduct is not a lesser included offense of violation of a protective order. We agree. A trial court has jurisdiction to convict a defendant of an offense other than the one charged only when that offense is a lesser included offense of the crime charged. Hall v. State, 81 S.W.3d 927, 929 (Tex. App.-Dallas 2002, pet. granted); see Cunningham v. State, 726 S.W.2d 151, 153 (Tex.Crim.App. 1987). Disorderly conduct, requiring proof a defendant acted in a public place, is not a lesser included offense of violation of a protective order, which has no "public place" requirement. See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981); Tex. Pen. Code Ann. §§ 25.07, 42.01 (Vernon Supp. 2004). The State agrees but argues that appellant waived error. However, contrary to the State's assertions, whether a court has jurisdiction to proceed to render judgment on a charge that was not a lesser included offense of the crime charged is a jurisdictional defect. See Hall, 81 S.W.3d at 929; Ford v. State, 38 S.W.3d 836, 841 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). A jurisdictional defect may be raised at any time. Puente v. State, 71 S.W.3d 340, 343 (Tex.Crim.App. 2002); Strong v. State, 87 S.W.3d 206, 214 (Tex. App.-Dallas 2002, pet. ref'd); see Hall, 81 S.W.3d at 929. We resolve appellant's first issue in his favor. Because the court lacked jurisdiction to convict appellant of disorderly conduct, the judgment of the trial court is void. See Hall, 81 S.W.3d at 931; Ford, 38 S.W.3d at 841. Our resolution of appellant's first issue is dispositive of this appeal; we need not address appellant's remaining argument. We vacate the trial court's judgment and render judgment that appellant is acquitted of the charged offense of violation of a protected order, as was determined by the trial court and is indicated in the record.