Allen v. State, 01-16-00768-CR

570 S.W.3d 795

Ruben Lee ALLEN, Appellant

v.The STATE of Texas, Appellee

NO. 01-16-00768-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 30, 2018

Discretionary Review Granted December 12, 2018

OPINION ON REHEARING¹

Harvey Brown, Justice

A jury found Ruben Lee Allen guilty of the offense of aggravated robbery with a deadly weapon² and assessed punishment at 25 years' confinement. In two issues, Allen contends that the trial court lacked jurisdiction over this case and that a $200 "summoning witness/mileage" fee³ assessed against him after his conviction is unconstitutional.

We affirm.

Background

K. Rajan is a pharmacist at the BZ Pharmacy in Harris County, Texas. While he was alone in the pharmacy, three men entered the store, and one of the men pointed a firearm at him as they robbed the pharmacy of money, mediations, and various items from the pharmacy safe. Fingerprints recovered during the police investigation were linked to Allen, who was later convicted of aggravated robbery with a deadly weapon. The jury assessed punishment at 25 years' confinement.

In the judgment of conviction, the trial court ordered Allen to pay court costs, which included a $200 charge for "summoning witness/mileage."⁴ He appeals.

Jurisdiction

In his first issue, Allen argues that the trial court, the 337th District Court of Harris County, Texas, lacked jurisdiction over this case because the underlying indictment was presented to the grand jury of the 230th District Court of Harris County, Texas. The State asserts that Allen waived his complaint by not first raising this procedural matter in the trial court.

The Code of Criminal Procedure sets forth the organization and duties of a grand jury. See TEX. CODE CRIM. PROC . arts. 19.01 – 20.22. A trial court forms, impanels, and empowers a grand jury to inquire into indictable offenses, including aggravated robbery with a deadly weapon. See TEX. CODE CRIM. PROC . art. 20.09 ("The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person."); Ex parte Edone , 740 S.W.2d 446, 448 (Tex. Crim. App. 1987) ("Once formed and impaneled by the district judge, the grand jury shall inquire into all offenses liable to indictment" (internal quotations omitted) ); Davis v. State , 519 S.W.3d 251, 254 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). Because a grand jury’s deliberations are secret, it retains a "separate and independent nature from the court." Ex parte Edone , 740 S.W.2d at 448.

After hearing testimony, a grand jury then votes concerning the presentment of an indictment.⁵ See TEX. CODE CRIM. PROC . art. 20.19 ("After all the testimony which is accessible to the grand jury shall have been given in respect to any criminal accusation, the vote shall be taken as to the presentment of an indictment...."); Bourque v. State , 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref'd) (grand jury "hears all the testimony available before voting on whether to indict the accused").

If "nine grand jurors concur in finding the bill," the State prepares the indictment and the grand jury foreman signs it and delivers it to the judge or the clerk of the court. TEX. CODE CRIM. PROC . arts. 20.19 –.21; Bourque , 156 S.W.3d at 678. An indictment is considered " ‘presented’ when it has been duly acted upon by the grand jury and received by the court." TEX. CODE CRIM. PROC . art. 12.06 ; see Henderson v. State , 526 S.W.3d 818, 819 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). Thus, presentment occurs when an indictment is delivered to either the judge or the clerk of the court. TEX. CODE CRIM. PROC . art. 20.21 ; State v. Dotson , 224 S.W.3d 199, 204 (Tex. Crim. App. 2007).

The district clerk for each county "is the clerk of the court for all the district courts in that county." Henderson , 526 S.W.3d at 820 (quoting Ex parte Alexander , 861 S.W.2d 921, 922 (Tex. Crim. App. 1993), superseded by statute on other grounds as stated in Ex parte Burgess , 152 S.W.3d 123, 124 (Tex. Crim. App. 2004) ). "The fact that a signed indictment features an original file stamp of the district clerk’s office is strong evidence that a returned indictment was ‘presented’ to the court clerk within the meaning of Article 20.21." Dotson , 224 S.W.3d at 204 (because indictment "bears an original file stamp, that fact convincingly shows the presentment requirement was satisfied"). Once an indictment is presented, jurisdiction vests with the trial court. TEX. CONST . art. V, § 12 (b); Dotson , 224 S.W.3d at 204.

All state district courts within the same county have jurisdiction over cases in that county, and criminal district courts have original jurisdiction over felony criminal cases in that county. See TEX. CODE CRIM. PROC . art. 4.05 ; TEX. GOV'T CODE § 74.094 ; Henderson , 526 S.W.3d at 820 ; Davis , 519 S.W.3d at 254. In counties having two or more district courts, the judges of the courts "may adopt rules governing the filing and numbering of cases, the assignment of cases for trial, and the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the courts." TEX. GOV'T CODE § 24.024 ; see id. § 74.093 (addressing adoption of local rules of administration to provide, in part, for assignment, docketing, transfer, and hearing of all cases); Henderson , 526 S.W.3d at 820 ; Davis , 519 S.W.3d at 255.

In multi-court counties, such as Harris County, a specific district court may impanel a grand jury, but it does not necessarily follow that all cases considered by that court’s grand jury are assigned to that court. See Henderson , 526 S.W.3d at 820 ; Davis , 519 S.W.3d at 255 ("If a grand jury in one district court returns an indictment in a case, the case nevertheless may be then assigned to any district court within the same county."); Hernandez v. State , 327 S.W.3d 200, 204 (Tex. App.—San Antonio 2010, pet. ref'd) ; Bourque , 156 S.W.3d at 678 ; Tamez v. State , 27 S.W.3d 668, 670 n.1 (Tex. App.—Waco 2000, pet. ref'd) (noting that "the judges of the Harris County district courts exercising criminal jurisdiction have adopted a procedure by which indictments are filed in each court on a rotating basis without reference to the court which empaneled the grand jury presenting the indictments"); see also Shepherd v. State , No. 01-16-00748-CR, 2017 WL 2813165, at *1 (Tex. App.—Houston [1st Dist.] June 29, 2017, pet. ref'd) (mem. op., not designated for publication). In other words, one court may impanel a grand jury, and if an indictment is presented, the case may be filed in another court of competent jurisdiction within the same county. See Aguillon v. State , No. 14-17-00002-CR, 2017 WL 3045797, at *2 (Tex. App.—Houston [14th Dist.] July 18, 2017, pet. ref'd) (mem. op., not designated for publication); Cannon v. State , No. 05-13-01109-CR, 2014 WL 3056171, at *4 (Tex. App.—Dallas July 7, 2014, no pet.) (mem. op., not designated for publication); Thornton v. State , No. 05-13-00610-CR, 2014 WL 2946457, at *3 (Tex. App.—Dallas May 6, 2014, no pet.) (mem. op., not designated for publication).

The 230th and 337th District Courts are both criminal district courts in Harris County, Texas. They both share the same clerk, i.e., the Harris County District Clerk, and have original jurisdiction in felony criminal cases. On November 6, 2015, the State filed in the 337th District Court a complaint, alleging that Allen committed the offense of armed robbery. A month later, the grand jury returned a true bill of indictment concerning the same conduct. See TEX. CONST . art. V, § 12 (b); TEX. CODE CRIM. PROC . art. 21.02 (setting out requirements of indictment); State v. Smith , 957 S.W.2d 163, 164–65 (Tex. App.—Austin 1997, no pet.) (describing "constitutional requisites for an indictment"). That indictment was presented to the Harris County District Clerk, as demonstrated by the clerk’s original file stamp, and filed in the 337th District Court, the trial court where the State’s complaint was originally filed. See Shepherd , 2017 WL 2813165, at *1 ("After the grand jury votes concerning presentment of an indictment, the State can file in any court that has jurisdiction over the case.").

As additional evidence that the indictment was acted upon by the grand jury and presented to, or received by, the 337th District Court, the grand jury foreman signed the indictment, the trial court directed the State to read the indictment to Allen in open court pretrial, and it accepted Allen’s plea of "not guilty." See Henderson , 526 S.W.3d at 820 ("Logically, [defendant]’s arraignment ... could not have occurred in the 177th District Court if the trial court had not actually received the indictment."); see also TEX. CODE CRIM. PROC . art. 12.06 (stating presentment occurs when indictment "has been duly acted upon by the grand jury and received by the court"). Thus, the 337th District Court was properly vested with jurisdiction over Allen. See TEX. CODE CRIM. PROC . arts. 4.05, 4.16 ; see also Aguillon , 2017 WL 3045797, at *2 (although amended indictment signed by foreman of grand jury impaneled by 177th District Court, 184th District Count had jurisdiction when amended indictment refiled in 184th District Court, which had "first-filed related case"); Helsley v. State , 2017 WL 931707, at *2 (Tex.App.-Amarillo 2017) (stating that when evidence of presentment appears in record, trial court has jurisdiction to try defendant for charges encompassed by indictment); Williams v. State , No. 06-14-00224-CR, 2015 WL 4071542, at *4 (Tex. App.—Texarkana July 6, 2015, no pet.) (mem. op., not designated for publication) (although indictment was presented by grand jury impaneled by 291st District Court, case was first filed in 282nd District Court, which obtained jurisdiction); Paz v. State , No. 05-14-01127-CR, 2015 WL...