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Allen v. State

Court of Appeals of Texas, First District

November 28, 2017

RUBEN LEE ALLEN, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1487627

          Panel consists of Justices Jennings, Bland, and Brown.

          OPINION

          Terry Jennings, Justice

         A jury found appellant, Ruben Lee Allen, guilty of the offense of aggravated robbery with a deadly weapon.[1] After finding true the allegation in an enhancement paragraph that he had previously been convicted of a felony offense, the jury assessed his punishment at confinement for twenty-five years. In two issues, appellant contends that the trial court lacked jurisdiction over this case and the $200 "Summoning Witness/Mileage" fee[2] assessed against him is unconstitutional. We modify the trial court's judgment and affirm as modified.

         Background

         Kannan Rajan, the complainant, testified that as the pharmacist at the BZ Pharmacy in Harris County, Texas, he was responsible for handling the money in the pharmacy's cash register, the prescription medications, and other property of the pharmacy. On September 11, 2015, while his assistant technician was on break and he was alone in the pharmacy, the complainant went to the restroom. When he came out, a black man, standing at the restroom's door, pointed a firearm at his head. The man told the complainant to "look down" and open the pharmacy's safe, which contained paperwork, certain narcotic medications, and money. The complainant did not see the face of the man with the firearm, but he saw the firearm and feared that he would die. The complainant noted that the man had two other people with him, but he was unable to see their faces because they were wearing hoods. After the complainant opened the pharmacy's safe, he laid down on the floor, while the man with the firearm "took some things from the safe" and asked the complainant for hydrocodone. Before leaving the pharmacy, the man took "some hydrocodone" and approximately $1, 000 from the pharmacy's cash register.

         While watching the pharmacy's surveillance videotape, admitted into evidence at trial as State's Exhibit 4, the complainant explained that the videotape shows a silver truck driving into the pharmacy's parking lot and parking close to the pharmacy. Although one person remained in the truck, three other people exited the truck and entered the pharmacy. Two of the people who got out of the truck wore "hoodies pulled over their heads, " and a third man wore a black shirt and white pants. The videotape next shows the three people entering the pharmacy and the man with the black shirt and white pants standing next to the restroom. As the complainant exits the restroom, the man with the black shirt and white pants "[p]ut[s] [a] gun" to the complainant's head, and the complainant, as instructed, "look[s] down" and "g[ets] down on [his] knees." After the complainant opens the pharmacy's safe, the man with the black shirt and white pants takes from out of the safe a white object, which he then carries into the pharmacy's "prescription medication area" and leaves on the floor of the pharmacy.

         Houston Police Department Officer O. Baldwin testified that while on duty on September 11, 2015, he was dispatched to investigate the aggravated robbery. Upon arriving at the BZ Pharmacy, Baldwin spoke to the complainant who told him that "three black males with ski masks on came into [the] shop and pulled a gun on him and got him out of the restroom." One of the men then "took him to the [pharmacy's] safe, " "made him open [it], " and "get . . . stuff out." Baldwin noted that he viewed the pharmacy's surveillance videotape, State's Exhibit 4, which shows a man wearing a black shirt and white pants holding a firearm and "grabb[ing] a [white] bag out of the [pharmacy's] safe." The man then leaves the white bag on the floor of the pharmacy. Baldwin noted that he collected the white bag, admitted into evidence at trial as State's Exhibit 7, from the floor of the pharmacy.

         Laurissa Pilkington, a latent print technician for the Houston Forensic Science Center ("HFSC"), testified that she tested three items related to the case, including State's Exhibit 7, the white bag found on the pharmacy's floor. From the white bag, Pilkington recovered two latent fingerprints.

         Darren Jewkes, a senior latent fingerprint examiner for HFSC, testified that he analyzed the two latent fingerprints that Pilkington had recovered from State's Exhibit 7, the white bag. He opined that the first fingerprint "corresponds to the right middle finger" of appellant, and the second fingerprint "belong[s] to the right ring finger" of appellant. In other words, the "two latent [finger]prints" recovered from the white bag "belonged to" appellant.

         After finding appellant guilty of the offense of aggravated robbery with a deadly weapon, and finding true the allegation in an enhancement paragraph that he had previously been convicted of a felony offense, the jury assessed appellant's punishment at confinement for twenty-five years. In the judgment of conviction, the trial court ordered appellant to pay court costs, "[a]s [a]ssessed, " which included a $200 charge for "Summoning Witness/Mileage."[3]

         Jurisdiction

         In his first issue, appellant argues that the trial court, the 337th District Court of Harris County, Texas, lacked jurisdiction over this case because the underlying indictment was presented to the grand jury of the 230th District Court of Harris, County, Texas. The State asserts that appellant waived his complaint by not first raising this procedural matter in the trial court.

         The Texas Code of Criminal Procedure sets forth the organization and duties of a grand jury. See Tex. Code Crim. Proc. Ann. arts. 19.01-20.22 (Vernon 2015 & Supp. 2016). A trial court forms, impanels, and empowers a grand jury to inquire into indictable offenses, including aggravated robbery with a deadly weapon. See Tex. Code Crim. Proc. Ann. 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)); Davis v. State, 519 S.W.3d 251, 254 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd); Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.-Dallas 2005, pet. ref'd). 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 then votes concerning the presentment of an indictment.[4] See Tex. Code Crim. Proc. Ann. 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; Davis, 519 S.W.3d at 254; Bourque, 156 S.W.3d at 678 (grand jury "hears all the testimony available before voting on whether to indict the accused").

         "[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. Tex. Code Crim. Proc. Ann. arts. 20.19-.21; Bourque, 156 S.W.3d at 678. 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. Ann. art. 12.06 (Vernon 2015); see also Henderson v. State, 526 S.W.3d 818, 819 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd). Thus, presentment occurs when an indictment is delivered to either the judge or the clerk of the court. Tex. Code Crim. Proc. Ann. 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, 526 S.W.3d at 820 (quoting Ex parte Alexander, 861 S.W.2d 921, 922 (Tex. Crim. App. 1993), superseded by statute on other grounds as stated in Ex parte Burgess, 152 S.W.3d 123, 124 (Tex. Crim. App. 2004)); Aguillon v. State, No. 14-17-00002-CR, 2017 WL 3045797, at *1 (Tex. App.-Houston [14th Dist.] July 18, 2017, pet. ref'd) (mem. op., not designated for publication). "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." 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 state district courts within the same county have jurisdiction over the same cases, and criminal district courts have original jurisdiction in felony criminal cases. See Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2015); Tex. Gov't Code Ann. § 74.094 (Vernon 2013); see also Aguillon, 2017 WL 3045797, at *2; Henderson, 526 S.W.3d at 820; Davis, 519 S.W.3d at 254. In counties having two or more district courts, the judges of the courts "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 (Vernon Supp. 2016); see also Tex. Gov't Code Ann. § 74.093 (Vernon Supp. 2016) (addressing adoption of local rules of administration to provide, in part, for assignment, docketing, transfer, and hearing of all cases); Henderson, 526 S.W.3d at 820; Aguillon, 2017 WL 3045797, at *2; Davis, 519 S.W.3d at 255.

         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; Aguillon, 2017 WL 3045797, at *2; Shepherd v. State, No. 01-16-00748-CR, 2017 WL 2813165, at *1 (Tex. App.-Houston [1st Dist.] June 29, 2017, pet. ref'd) (mem. op., not designated for publication); Davis, 519 S.W.3d at 255 ("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."); Hernandez v. State, 327 S.W.3d 200, 204 (Tex. App.-San Antonio 2010, pet. ref'd); 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 Aguillon, 2017 WL 3045797, at *2; Cannon ...


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