Azeez v. State

In Azeez v. State, 248 S.W.3d 182 (Tex. Crim. App. 2008), the defendant sought to quash a complaint accusing him of failing to appear, arguing that he should instead be prosecuted under a more specific transportation code offense criminalizing the failure to appear after being cited for a traffic violation. 248 S.W.3d at 185. The court of criminal appeals, after discussing its holding in Smith, referred to the defendant's pretrial motion to quash as "premature." Id. at 193-94. The court noted that "the complaint itself was unobjectionable" and that it "alleged a failure to appear apparently under the terms of the Penal Code provision." The court went on, "It was only after the State's evidence disclosed that the case involved the failure to appear under the terms of a speeding citation that a basis for the appellant's in pari materia challenge became manifest." Id. at 194. The court concluded that the defendant had preserved his in pari materia claim by filing motions for a directed verdict and a new trial. In Azeez v. State, the appellant was convicted of failing to appear in court under Section 38.10 of the Texas Penal Code. The offense underlying that prosecution was Azeez's receipt of, and failure to attend to the consequences of, a speeding ticket. The Azeez court noted that the prosecution's charging instrument specifically tracked the language in Section 38.10. The trial court's jury charge likewise tracked the language of Section 38.10. Meanwhile, Azeez had repeatedly argued--without success--that he should have been prosecuted under a similar, yet more specific, provision found in Section 543.009 of the Texas Transportation Code. Id. at 184-86. The Texas Court of Criminal Appeals reversed Azeez's Section 38.10 conviction. In so doing, the court found that Section 543.009(b) (failing to appear for a traffic offense) was a more narrowly hewn offense than that set out in Section 38.10 of the Texas Penal Code (failure to appear after release from custody), was a complete crime within itself, and would otherwise meet every element (and hence be punishable under) the Texas Penal Code provision. The court also considered the purposes of both statutes and the Legislature's manifested policy that a failure to appear violation based on a traffic infraction should carry a lesser punishment. Id. at 192-93.