Appeal from the 184th District Court Harris County, Texas
Trial Court Case No. 1305212
consists of Justices Keyes, Bland, and Huddle.
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.
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.").
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."
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
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.").
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.
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.).
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