NO. 1364-01








Cochran, J., delivered the opinion of the Court, joined by Keller, P.J., Meyers, Price, Womack, and Holcomb, JJ. Johnson, Keasler, and Hervey, JJ., concurred in the judgment.


In this case the State Prosecuting Attorney asks us to decide whether a defendant who pleads guilty to one indictment misjoining a felony charge and two misdemeanor charges is entitled to have his entire conviction declared void and be returned to a pre-plea status after he has enjoyed the benefits of his plea bargain. (1) We hold that the defendant is entitled to relief only on the misjoined misdemeanor charges because the district court judge did not have jurisdiction to accept a plea on them. But the district court did have jurisdiction over the felony charge, and the appellant has failed to show that he would not have pled guilty to the felony charge if the misdemeanor charges had been filed separately in county court. (2) Moreover, appellant has not shown that he has suffered any harm in the misjoinder of these offenses. (3) Therefore, we reverse the decision of the Tenth Court of Appeals which held that the felony conviction was "void." Puente v. State, 48 S.W.3d 379 (Tex. App. - Waco 2001).


The State used a single indictment to charge appellant with three separate offenses alleged to have occurred on March 1, 1998: possession of cocaine, possession of marihuana, and possession of inhalant paraphernalia. Appellant pled guilty to that three-count indictment which joined one felony offense and two misdemeanor offenses, (4) and expressly waived his right to appeal in return for the State's plea bargain recommendation of four years deferred adjudication. (5) The trial judge accepted the terms of the plea bargain and placed appellant on community supervision.

On March 30, 2000, the State filed a motion to adjudicate alleging that appellant violated the terms of his community supervision. (6) Appellant then filed a "Motion to Terminate Deferred Adjudication," claiming that the district court lacked jurisdiction over the misdemeanor offenses. After considering the motion on May 25, 2000, the trial court signed an order retaining jurisdiction over the felony and severing out the misdemeanors. (7) That same day, the court adjudicated appellant's guilt on the felony charge and sentenced him to two years in a state jail facility.

Appellant appealed that felony conviction, claiming that his original plea bargain was "void" because the trial court lacked subject matter jurisdiction over the misdemeanor charges. The Tenth Court of Appeals reversed the trial court's judgment on the felony offense, concluding that because the two misdemeanor offenses had been misjoined with the felony offense at the time appellant originally pled guilty, the entire deferred adjudication and community supervision order was void as was the ultimate felony conviction. (8) The State Prosecuting Attorney then filed a petition for discretionary review with this Court.


A district court has jurisdiction over felony offenses. (9) It does not have original jurisdiction over misdemeanor charges, except those involving official misconduct. (10) In this case neither the State nor the appellant dispute that the district court had jurisdiction over the felony charge contained within the indictment, but did not have jurisdiction over the two misdemeanor charges. They do dispute, however, the effect of the original misjoinder on appellant's plea bargain and his felony conviction. Appellant argues that his original plea bargain was entirely "void" due to the lack of jurisdiction over the misdemeanors. Appellant, however, fails to recognize that he was not adjudicated on the misdemeanor charges, but only the felony charge.

Appellant originally pled guilty to the entire indictment. The original deferred adjudication order was valid for the felony. To the extent that appellant was also placed on deferred adjudication for the two misdemeanor charges, that order contained a jurisdictional defect. A jurisdictional defect may be raised at any time. (11) Appellant could raise it in the trial court, on direct appeal, or on a writ of habeas corpus because, as a general proposition, a total lack of subject matter jurisdiction cannot be waived. (12) But this general principle does not entitle appellant to greater relief than a correction of the jurisdictional defect. (13)

In the present case, the State waived the misjoined misdemeanor offenses. The trial court severed them from the felony charge. Consequently, appellant's guilty plea to those misdemeanor offenses disappeared. Even before his community supervision was revoked appellant obtained a windfall. Not only did the trial court sever the misdemeanor charges from the felony charge, but its order ensured that appellant could not be prosecuted over objection in county court because the two-year statute of limitations had run on them. Appellant has not claimed that he would not have pled guilty to the original indictment had he known that the two misdemeanor charges would disappear; i.e., he has not claimed that he would have only pled guilty if he knew he could be punished for three offenses instead of one. (14)

Both here and in the court of appeals, the State has relied upon our opinion in Ex parte Ervin, (15) in which we held that the State may waive the "illegal" portion of a judgment. (16) In this case, the State waived the illegal portion of the deferred adjudication order by severing the misdemeanor charges. That is permissible under Ervin. The court of appeals reasoned that a portion of this Court's discussion in Ex parte Seidel, (17) superceded Ervin. It did not. The fact that a portion of an indictment, judgment, or sentence may be invalid does not necessarily mean that the entire indictment, judgment, or sentence is invalid or "void." (18) There is neither a constitutional nor statutory prohibition against deleting the invalid portion of an indictment, judgment, or sentence if it may be done without loss of jurisdiction and without doing violence to the rights of the defendant.

The appellant argues that the entire plea bargain and order placing him on deferred adjudication was "void" because the terms of that plea bargain could not be specifically enforced. That is, the trial judge could not, in fact, place appellant under community supervision for four years on the misdemeanor charges. True enough. But the trial judge could and did place appellant under community supervision for four years on the felony charge. Moreover, as soon as the jurisdictional problem was brought to the trial judge's attention, appellant received a much better result than he had originally agreed to-severance of the misdemeanor charges and the right to object to having them refiled in county court.

Because we conclude that a misjoinder of misdemeanor offenses did not, in this case, render void the ultimate felony conviction, and because appellant has not shown harm, we reverse the decision of the court of appeals and affirm the trial court's judgment.

Cochran, J.

Delivered: March 20, 2002


1. We granted the State Prosecuting Attorney's following three Grounds for Review: