McLeod v. State

1

KELVIN DARNELL MCLEOD, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 14-22-00684-CR

Court of Appeals of Texas, Fourteenth District

November 30, 2023

On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 1622330

Panel consists of Wise, Zimmerer, and Poissant Justices.

OPINION

Jerry Zimmerer, Justice.

Appellant Kelvin Darnell McLeod, Jr. challenges his conviction for online solicitation of a minor. In six issues appellant asserts (1) the trial court lacked jurisdiction; (2) the statute authorizing a visiting judge is unconstitutional as applied to him; (3) the evidence is insufficient to support his conviction; (4) his right against self-incrimination was violated; (5) the judgment inaccurately reflected the victim's age; and (6) the trial court erred in assessing costs. Concluding the trial court had jurisdiction, the evidence was sufficient to support appellant's conviction, and appellant failed to preserve error on his violation-of-self-incrimination claim, we affirm the judgment of conviction and assessment of punishment. Further concluding that the judgment does not accurately reflect the age of the victim and the court costs were improperly assessed, we reverse the portions of the judgment assessing court costs and stating the age of the victim and remand for proceedings consistent with this opinion.

Background

The Harris County Precinct 1 Constable's Office and the Internet Crimes Against Children (ICAC) unit hosted an operation designed to apprehend individuals using the internet to prey on children. Vanessa Brady was an investigator in the ICAC unit. Brady worked as an undercover officer posing online as a minor in the messaging app Kik. Brady's undercover persona was a 15-year-old girl named Abby Lopez.

Appellant initiated a conversation with Brady, who appellant knew by the profile name Abby Lopez, on Kik. Shortly into the conversation, appellant told Brady he was 26, and Brady responded that she was 15 years old. When the conversation continued that evening, appellant and Brady discussed appellant's job as a security guard and appellant said he could use handcuffs on her so he could "have [his] way with [her]." Brady asked what that meant, and appellant replied, "I meant [I] would keep having sex with you all night long."

A few hours later, appellant asked if Brady was home alone and when she responded that she was, appellant suggested maybe he "should come over one day." Brady asked what appellant wanted to do if he came over, and he replied "Make out which would possibly lead to something else." He soon clarified that "something else" was "taking [her] virginity." Appellant and Brady then discussed when he could come over and how he would get there.

Over the next several days appellant and Brady chatted more about him coming over and having sex with her. However, appellant called off the initial meeting, stating "[I] never been with a 15 yr old girl. I kinda don't want to feel like I'm taking advantage of you." At that time, Brady responded, "Well I'm not going to bother you anymore" and considered the investigation concluded.

A few days later, however, appellant re-initiated the conversation on the messaging app. Appellant and Brady chatted for a few weeks, often with graphic detail of appellant's sexual intent toward Brady, including nude photos sent by appellant. Approximately two months passed with no interaction, then appellant contacted Brady again.

Another two months later, appellant told Brady he was interested in meeting and asked for her address. As part of the operation a "takedown team" was located at an apartment complex in Harris County. Video surveillance was set up outside the apartment complex. When appellant arrived at the address, he was arrested.

A jury convicted appellant of online solicitation of a minor, and the trial court assessed appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for seven years. This appeal followed.

Analysis

Appellant challenges his conviction in six issues in which he asserts (1) the trial court lacked jurisdiction; (2) assignment of a visiting judge was unconstitutional; (3) the evidence was insufficient to support his conviction; (4) his Fifth Amendment right against self-incrimination was violated; (5) the judgment of conviction contains an error in listing the victim's age; and (6) the trial court erred in assessing court costs.

I. Appellant waived his complaint that article 21.02 of the Code of Criminal Procedure was violated.

In his first issue, appellant asserts the judgment of conviction is void because the 178th District Court never acquired jurisdiction over his case. According to appellant, article 21.02(2) of the Code of Criminal Procedure requires a grand jury to present its indictment to the same district court that empaneled the grand jury. See Tex. Code Crim. Proc. art. 21.02(2). Appellant asserts the grand jury failed to comply with article 21.02(2) because, instead of presenting the indictment to the 337th District Court-the court that empaneled the grand jury-the grand jury presented the indictment to the 178th District Court. According to appellant, the grand jury's failure to comply with article 21.02(2) rendered the indictment against him a nullity. Thus, he argues it could not have conferred jurisdiction upon any court.

The State asserts that appellant's issue has been rejected multiple times by this court and the First Court of Appeals. See Johnson v. State, 562 S.W.3d 168, 172-74 (Tex. App.-Houston [14th Dist.] 2018, pet. ref'd); Allen v. State, 570 S.W.3d 795, 799-802 (Tex. App.-Houston [1st Dist.] 2018), aff'd, 614 S.W.3d 736 (Tex. Crim. App. 2019). Relying on authority from both Houston courts of appeals, the State asserts the grand jury satisfied the presentment requirement in article 21.02(2) because it presented the indictment to the Harris County District Clerk, the court clerk for all Harris County district courts.

In appellant's reply brief, he asserts that (1) presentment of an indictment to a district clerk does not satisfy the requirement in article 21.02(2) that the indictment be presented to the district court that empaneled the grand jury; (2) there is no evidence the indictment was presented to the empaneling court as required by article 21.02(2); (3) the presentment of an indictment to one district court does not vest jurisdiction in all district courts in the same county; and (4) Johnson and Allen do not control because they do not address the requirement in article 21.02(2) that an indictment must be "presented in the district court of the county where the grand jury is in session" and both opinions are inconsistent with the requirements in article 21.02(2).

While a defendant may challenge the trial court's jurisdiction for the first time on appeal, State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009), this court has held that "[a]t best, appellant's arguments present a non-jurisdictional, procedural issue related to appellant's indictment." Johnson, 562 S.W.3d at 174 (addressing a similar, if not identical, argument).

Appellant asserts that Johnson does not control because it does not address the mandatory requirement in article 21.02(2) that an indictment be "presented in the district court of the county where the grand jury is in session." Although we have not addressed whether a violation of article 21.02 constitutes a jurisdictional defect, the Court of Criminal Appeals held that the failure to comply with article 21.02 does not deprive a court of jurisdiction. See Jenkins v. State, 592 S.W.3d 894, 902 (Tex. Crim. App. 2018) ("We conclude, therefore, that, although defective under article 21.02, the indictment nevertheless (1) charges a person (2) with committing an offense, and thus vested the trial court with both personal and subject-matter jurisdiction."). The court further held that an indictment's failure to comply with article 21.02 amounts to a defect in form that must be raised before the first day of trial or else the issue is waived. See id. at 902 ("If a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post-conviction proceeding."). Appellant did not object to the alleged failure of the grand jury to comply with article 21.02(2) at trial. We are bound by high court authority in this instance and conclude that appellant failed to preserve error on this procedural issue. We overrule appellant's first issue.^[1]

II. Section 74.056(a) of the Government Code is not unconstitutional as applied to appellant.

This case was tried in the 178th District Court of Harris County beginning September 15, 2022. At the time of trial, Judge Kelli Johnson was the elected judge of the 178th District Court. She did not preside over the trial, however. Judge Terry Flenniken, who had been assigned to serve as a visiting judge, presided over the trial instead. In appellant's second issue, he asserts that Government Code section 74.056(a), which authorizes a presiding judge to assign visiting judges to try cases and dispose of accumulated business, is unconstitutional because it violates article V, section 7 of the Texas Constitution as applied to him in this case.

A. Standard of Review

The constitutionality of a statute is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex Crim. App. 2013). A litigant who raises an "as applied" challenge to the constitutionality of a statute concedes the statute's general...