Johnson v. State

562 S.W.3d 168

Jermaine Earvin JOHNSON, Appellant

v.The STATE of Texas, Appellee

NO. 14-16-00658-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion on Rehearing filed October 11, 2018

Rehearing Denied November 6, 2018

Rehearing En Banc Denied December 11, 2018

Theodore Lee Wood, Houston, TX, for Appellant.

Clinton Morgan, Houston, TX, for Appellee.

Panel consists of Chief Justice Frost and Justices Boyce and Jewell (Frost, C.J., concurring and dissenting).

MAJORITY OPINION ON REHEARING

Kevin Jewell, Justice

The court denies appellant's motion for rehearing. A majority of the court grants the State's motion for rehearing. The court's opinion and judgment issued March 27, 2018 is withdrawn and the following opinion is issued in its stead.

Appellant Jermaine Earvin Johnson challenges his conviction for aggravated robbery, asserting that the trial court lacked jurisdiction over his case because a grand jury impaneled by a district court other than the trial court presented the indictment to the trial court. Appellant also contends that article 102.004(a) of the Texas Code of Criminal Procedure, which governs jury fees paid by convicted defendants, violates the separation-of-powers clause of the Texas Constitution. Finally, appellant urges that the imposition of a jury fee against those convicted by a jury violates the constitutional right of trial by jury.

We conclude, unanimously, that the trial court had jurisdiction over the case. All members of the panel join in section III.A of this opinion on rehearing. Regarding appellant's facial constitutional challenge to the jury fee, however, a majority of the court on rehearing holds that article 102.004(a) is not facially unconstitutional on the grounds that it violates the separation-of-powers clause. As to appellant's third issue, a majority holds that the imposition of this jury fee does not violate the constitutional right to a trial by jury. Accordingly, the trial court's judgment is affirmed.

I. Background

The grand jury for the 209th District Court of Harris County presented an indictment charging appellant with aggravated robbery. That indictment was filed in the 263rd District Court of Harris County, the court in which the State's complaint had been filed. The judge of the 263rd District Court conducted a jury trial of the charged offense. The jury found appellant guilty as charged and assessed punishment at 27 years' confinement. The trial court ordered appellant to pay court costs. The bill of costs, which totaled $334, included a $40 "jury fee" charge.

II. Issues

Appellant raises three issues in this court:

(1) The 263rd District Court of Harris County did not have jurisdiction over appellant's case because the grand jury for the 209th District Court of Harris County presented the indictment to the 263rd District Court, and that presentment does not vest jurisdiction in the 263rd District Court.

(2) The jury fee is unconstitutional because having the trial court collect the fee makes the court a tax gatherer, which violates the Texas Constitution's separation-of-powers clause.

(3) The jury fee violates the accused's right to a jury trial enshrined in the Texas Bill of Rights.

III. Analysis

A. The Trial Court's Jurisdiction

In his first issue, appellant argues that the trial court, the 263rd District Court, lacked jurisdiction over this case because a grand jury impaneled by the 209th District Court presented the underlying indictment to the 263rd District Court. Appellant contends that the grand jury for the 209th District Court should present indictments only to the 209th District Court and that this grand jury had no authority to present an indictment to the 263rd District Court. Appellant argues that because the grand jury for the 209th District Court did not present the indictment to the 209th District Court, that court lacked jurisdiction over the indictment, and because the grand jury had no authority to present the indictment to the 263rd District Court, that court lacked jurisdiction. According to appellant, if a grand jury impaneled by one district court presents an indictment to a different district court, then no district court has jurisdiction over the indictment. Appellant concedes that if the grand jury had presented the indictment to the 209th District Court, that court would have had jurisdiction over the indictment and that court would have had authority to transfer the case to the 263rd District Court. Appellant notes that the record does not reflect any transfer in this case.

The Texas 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. See id. 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) ). 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 votes as to the presentment of an indictment. 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 ...."); Ex parte Edone , 740 S.W.2d at 448. An indictment is "a written instrument presented to a court by a grand jury charging a person with the commission of an offense." Tex. Const. art. V, § 12 (b); see also Tex. Code Crim. Proc. art. 21.02 (setting out requirements of indictment).

"[I]f nine members 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. See Tex. Code Crim. Proc. arts. 20.19 -.21; Bourque v. State , 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref'd). 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. Thus, presentment occurs when an indictment is delivered to either the judge or the clerk of the court. See 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 v. State , 526 S.W.3d 818, 820 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (internal quotations omitted). If a signed indictment features an original file stamp of the district clerk's office, this file stamp 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 ; Cook v. State , 902 S.W.2d 471, 476 (Tex. Crim. App. 1995).

All district courts in Harris County share the same original jurisdiction in felony criminal cases. See Tex. Code Crim. Proc. art. 4.05 ; Tex. Gov't Code § 74.094 ; Saldivar v. State , 542 S.W.3d 43, 45 (Tex. App.—Houston [14th Dist.] 2017, pet. filed). This shared administration allows district judges to "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 also Saldivar , 542 S.W.3d at 45.

Thus, in multi-court counties, such as Harris County, although a specific district court may impanel a grand jury, 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 v. State , 519 S.W.3d 251, 255 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) ; ("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."); Bourque , 156 S.W.3d at 678 ; see also Tamez v. State , 27 S.W.3d 668, 670 n.1 (Tex. App.—Waco 2000, pet. ref'd) (noting "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"). 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 Saldivar , 542 S.W.3d at 45-46 ; Davis , 519 S.W.3d at 255.

The 209th and 263rd District Courts, both district courts in Harris County, Texas, share the same clerk, i.e., the Harris County District Clerk, and both courts have original jurisdiction in felony criminal cases. The State filed in the 263rd District Court a complaint, alleging that "on or about October 9, 2014," appellant "did then and there unlawfully[,] while in the course of committing theft of property owned by [the complainant], and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place [the complainant] in fear of imminent bodily injury and death," and appellant "did then and there use and exhibit a deadly weapon, namely, a firearm." (emphasis omitted.) The grand jury returned a true bill of indictment concerning the same...