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Davis v. State

Court of Appeals of Texas, First District

April 6, 2017

FREDERICK ANTHONY DAVIS, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1305212

          Panel consists of Justices Keyes, Bland, and Huddle.

          OPINION

          Jane Bland Justice.

         The State charged Frederick Anthony Davis with aggravated assault. He pleaded guilty to the charge and "true" to one enhancement paragraph without a recommendation as to punishment. After a hearing and a pre-sentencing investigation (PSI), the trial court assessed Davis's punishment at 17 years' confinement. On appeal, Davis contends that (1) the trial court lacked jurisdiction over the case because the grand jury that indicted him sat in a different Harris County District Court than the one in which his case was heard; (2) the 17-year sentence is outside the statutory range because his earlier juvenile adjudication cannot apply to enhance his sentence; and (3) the statutory clerk's fee assessed as a court cost is, on its face, an unconstitutional tax. We conclude that the trial court had jurisdiction to hear Davis's case, applied the appropriate sentencing range, and did not err in assessing the fee. We therefore affirm.

         BACKGROUND

         This case involves the transfer of a grand jury indictment from one Harris County District Court to another Harris County District Court in which an earlier complaint involving the same offense was pending. The indictment in this case, identified as cause number 1305212, was filed against Davis in the 184th District Court. The indictment was signed by the "178th Foreman of the Grand Jury" and indicts Frederick Anthony Davis for causing serious bodily injury while evading arrest. See Tex. Penal Code Ann. § 38.04(a) (West 2013) ("A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.").

         The 184th District Court was the court in which the State had filed an earlier complaint concerning the same conduct, in cause number 1304960. In the caption, the indictment reflects that the indictment was a "refile" of a "related case[], " cause number "1304960/ 184." When the indictment was filed, the State moved to dismiss the earlier cause number, 1304960, notating that the "case [was] refiled as cause no. 1305212."

         The trial court proceedings were conducted in the 184th District Court. After Davis pleaded guilty to the charged offense and true to the enhancement paragraph, the trial court requested a PSI report and reconvened for the punishment phase. The State proffered the PSI report, which the trial court admitted into evidence. That report reflects that, in the prior juvenile delinquency adjudication alleged to enhance his evading arrest offense, Davis initially received 12 months' probation. When Davis failed to comply with the terms of his probation, the juvenile court revoked it and committed Davis to a juvenile detention facility.[1]

         The trial court in this case assessed Davis's punishment at 17 years' confinement and a $40 fee for the services of the clerk of the court. See Tex. Code Crim. Proc. Ann. art. 102.005(a) (West 2005) ("A defendant convicted of an offense in a county court, a county court at law, or a district court shall pay for the services of the clerk of the court a fee of $40.").

         DISCUSSION

         I. Jurisdiction

         Davis first challenges the jurisdiction of the 184th District Court, contending that the court did not acquire jurisdiction over Davis because a grand jury from the 178th District Court presented the indictment, requiring that the case be returned to the 178th District Court.

         The State argues that a plea to the jurisdiction may not be raised for the first time on appeal, citing to several older Court of Criminal Appeals cases as well as to Blades v. State, Garcia v. State, and Mills v. State. See Blades v. State, 03-14-00634-CR, 2015 WL 4914798, at *1 (Tex. App.-Austin Aug. 12, 2015, no pet.) (mem. op., not designated for publication); Garcia v. State, 901 S.W.2d 731 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd); Mills v. State, 742 S.W.2d 831 (Tex. App.-Dallas 1987, no pet.).

         However, the Court of Criminal Appeals has more recently held that jurisdiction may be challenged for the first time on appeal. See Cook v. State, 902 S.W.2d 471, 480 (Tex. Crim. App. 1995) (jurisdiction defects in indictment may be raised for the first time on appeal). Additionally, Blades, Garcia, and Mills are distinguishable because their holdings apply to jurisdictional challenges based on article 4.16 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 4.12, 4.16 (West 1966) (providing that when two or more courts have jurisdiction, the court in which the indictment was first filed has jurisdiction except in the case of misdemeanors); Blades, 2015 WL 4914798 at *3 (jurisdictional challenge based on article 4.16 to lack of transfer could be waived since the absence of a transfer order is at most a procedural issue); Garcia, 901 S.W.2d at 732 (interpreting challenge based on article 4.16 as a challenge to lack of transfer order which could be waived); Mills, 742 S.W.2d at 835 (article 4.16 does not ...


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