Gray v. State

707 S.W.2d 607, 1986 Tex. Crim. App. LEXIS 1234

• Court: Court of Criminal Appeals of Texas
• Decided: April 9, 1986
• Docket: No. 285-85
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of theft upon a plea of guilty. Punishment was assessed at five years confinement in the Texas Department of Corrections, probated for five years. Subsequently, appellant’s probation was revoked. The Twelfth Court of Appeals reversed the revocation order, holding that the trial court lacked jurisdiction. Gray v. State, No. 12-84-0041-CR (Tex. App. — Tyler January 10, 1985) (Opinion on Rehearing). We granted the State’s petition for discretionary review to determine whether the trial court had jurisdiction to hold a revocation hearing. We will reverse the Court of Appeals.

Appellant was charged by indictment in the 124th District Court¹ for Gregg County with having committed the offense of theft over $200.00 but less than $10,000.00. See V.T.C.A. Penal Code, § 31.03(d)(4)(A) (Supp.1983). On March 28, 1979, in the 124th District Court, Judge David Moore signed an order granting appellant probation. The order contains a heading listing the 124th District court as the court of jurisdiction. On the same day, Judge Moore signed a judgment assessing punishment and an order suspending imposition of sentence and placing appellant on probation. The top of this judgment contains a heading that reads: “MINUTES OF THE 188th JUDICIAL DISTRICT COURT OF GREGG COUNTY, TEXAS”.

On October 25, 1983, Judge Alvin Khoury, presiding judge of the 124th District Court, signed an order for the arrest of appellant for violation of the terms and conditions of her probation. The State filed an application for revocation of probation in the 124th District Court.² On January 13, 1984, in the 124th District Court, Judge Khoury signed an order revoking appellant’s probation and sentencing her.

Appellant filed a notice of appeal in the 188th District Court claiming an appeal from Judge Khoury’s January 13th order revoking probation in the 124th District Court. Appellant then filed a designation of the record in the 124th District Court. The order approving the record has the 188th typed into the caption and is signed by Judge Khoury, presiding judge.

The Court of Appeals held that Judge Khoury was without jurisdiction to revoke appellant’s probation since the record did not reflect a valid transfer order from the 188th District Court to the 124th District Court. See Art. 42.12, § 5(a) V.A.C.C.P., (only the court in which defendant was tried may revoke probation, unless case transferred). The State argues that the trial court properly had jurisdiction over appellant because jurisdiction was vested in the 124th District Court throughout all proceedings. The State explains the presence of notations designating the 188th District Court in the court documents as clerical errors. We agree.

The record plainly reflects that the indictment in this cause was filed in the 124th District Court of Gregg County, not the 188th District Court of Gregg County. As a result, jurisdiction vested in the 124th District Court. Art. 4.12 V.A.C.C.P.³ Thus, from the face of this record, we begin with the premise that jurisdiction was properly in the 124th District Court.

The order granting probation properly indicates that the proceeding took place in the 124th District Court. While it is true that the judgment seems to indicate that the proceeding took place in the 188th District Court, the only reasonable explanation for the contradictory heading on the judgment, in light of the headings on all other critical documents, is clerical error.⁴ Casey v. State, 519 S.W.2d 859, 861 (Tex.Cr.App.1975) (notations on order revoking probation indicating 146th District Court were clerical error in light of contrary docket sheet entries). Therefore, we find that all proceedings were held in the 124th District Court.

Having determined that jurisdiction was properly in the 124th District Court and that the subsequent proceedings were held in the 124th District Court, we need not decide whether a valid transfer was effected. Indeed, it was improper for the Court of Appeals to reverse the instant case on that basis.

The judgment of the Court of Appeals is reversed. The trial court’s judgment is ordered reformed so as to reflect that it was entered in the 124th District Court. This cause is remanded for consideration of appellant’s remaining grounds of error.

CLINTON, J., dissents.

1 . All emphasis supplied by the writér of this opinion unless otherwise indicated.

2 . The State later filed an amended motion to revoke appellant's probation in the 124th District Court.

3 . Article 4.16, supra, provides:

When two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or a complaint shall first be filed shall retain jurisdiction except as provided in Article 4.12.

[Article 4.12 deals with misdemeanors].

4 . A nearly identical error occurred on court documents from Gregg County at least once before. Stephenson v. State, 500 S.W.2d 855 (Tex.Cr.App.1973) (reference to 188th District Court on transfer order "clearly in error according to all other entries in the record including the order ... revoking probation”).