Appeal from the 177th District Court Harris County, Texas
Trial Court Case No. 1426434
consists of Chief Justice Radack and Justices Brown and
Russell Lloyd Justice
Damien Lamont Henderson, was found guilty of felony murder
and the trial court assessed his punishment at life
imprisonment. In a single issue, appellant argues that the
trial court's judgment is void because no trial court
ever acquired jurisdiction over him. We affirm.
was indicted for felony murder, with the underlying offense
of injury to a child. See Tex. Penal Code Ann.
§ 19.02(b)(3) (West 2013), § 22.04 (West Supp.
2016). The indictment, identified as cause number 1426434,
was delivered to the Harris County District Clerk's
Office, and filed in the county's 177th District Court.
The indictment reflects that it was issued by "[t]he
duly organized Grand Jury of Harris County, Texas" and
signed by the "Foreman of the Grand Jury." Above
the foreman's signature is a stamp, "Foreman
trial court proceedings were conducted in the 177th District
Court. After a bench trial before the 177th District Court,
the court convicted appellant of murdering his
girlfriend's thirteen-month old son, as alleged in the
indictment, and assessed his punishment at life imprisonment.
sole appellate issue, appellant argues that the district
court that tried and convicted him of murder, the 177th
District Court, never acquired jurisdiction over him because
a grand jury from the 182nd District Court presented the
indictment to the 177th District Court. Appellant further
contends that the judgment is void because the 177th District
Court did not have jurisdiction over him. The State argues
that appellant waived this issue because he is challenging a
procedural deficiency with respect to the indictment, and
therefore, he was required to raise this issue in a timely
plea to the jurisdiction in the trial court to preserve this
issue for appellate review.
V, section 12 of the Texas Constitution defines an indictment
as "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). Article
20.21 of the Code of Criminal Procedure, which is entitled
"Indictment Presented, " provides: "When the
indictment is ready to be presented, the grand jury shall
through their foreman, deliver the indictment to the judge or
clerk of the court." Tex. Crim. Proc. Code Ann. art.
20.21 (West 2015). Thus, presentment occurs when the
indictment "is delivered to either 'the judge or
clerk of the court.'" State v. Dotson, 224
S.W.3d 199, 204 (Tex. Crim. App. 2007). "Once an
indictment is presented, jurisdiction vests with the trial
court." Id. 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." Id.
district courts have original jurisdiction in felony criminal
cases. Tex. Crim. Proc. Code Ann. art. 4.05 (West 2015). In
counties having two or more district courts, such as Harris
County, "the district judges 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 Ann. § 24.024 (West Supp. 2016);
see id. § 74.093 (addressing adoption of local
rules of administration to provide, in part, for assignment,
docketing, transfer, and hearing of all cases). Therefore,
although a specific district court may impanel a grand jury,
it does not necessarily follow that all cases returned by
that grand jury are assigned to that court. See Bourque
v. State, 156 S.W.3d 675, 678 (Tex. App.- Dallas 2005,
pet. ref'd); see also Tamez v. State, 27 S.W.3d
668, 675 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").
177th and 182ndDistrict Courts are both criminal district
courts in Harris County, they share the same court clerk-the
Harris County District Clerk-and they have original
jurisdiction in felony criminal cases. The record reflects
that the indictment against appellant was delivered, or
presented, to the Harris County District Clerk's Office,
as demonstrated by the clerk's original file stamp, and
it was filed in the county's 177th District Court.
See Dotson, 224 S.W.3d at 204. Furthermore, the
indictment properly charged appellant with felony murder,
with the underlying offense of injury to a child. The
indictment charged a person (appellant) and the commission of
an offense (felony murder). It was presented to the 177th
District Court by virtue of the fact that it was delivered to
the court's clerk and jurisdiction was properly vested in
the 177th District Court. Any defect with the indictment was
not a jurisdictional defect. See Tex. Const. art. V,
§ 12(b); Dotson, 224 S.W.3d at 204.
fact that appellant was indicted by a grand jury impaneled by
one court and tried in another court without a motion to
transfer the case to the trial court is, at best, a
procedural issue. "Any procedural challenge to the
transfer of a case within a county is . . . determined and
resolved by proper application of local rules promulgated
pursuant to constitutional and statutory authority; it is not
a jurisdictional defect." Davis v. State, No.
01-16-00079-CR, 2017 WL 1281426, at *4 (Tex. App.-Houston
[1st Dist.] Apr. 6, 2017, no pet. h.) (citing Tex. Gov. Code
Ann. § 74.094; Bourque, 156 S.W.3d at 678).
jurisdictional defects in indictments may be challenged for
the first time on appeal, procedural deficiencies with regard
to such indictments may not. See Cook v. State, 902
S.W.2d 471, 480 (Tex. Crim. App. 1995); see also
Lemasurier v. State, 91 S.W.3d 897, 899-900 (Tex.
App.-Fort Worth 2002, pet. ref'd) (holding defendant
waives error regarding procedural deficiency with indictment
by failing to file timely plea to jurisdiction); Tamez v.
State, 27 S.W.3d 668, 670-71 (Tex. App.-Waco 2000, pet.
ref'd) (holding defendant waived appellate complaint that
indictment was filed in district court other than ...