John Richard Allen v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 24, 2024
• Docket: 05-23-00476-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed June 24, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00476-CR

JOHN RICHARD ALLEN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F19-00144-W

MEMORANDUM OPINION Before Justices Reichek, Goldstein, and Garcia Opinion by Justice Reichek Following a jury trial, John Richard Allen appeals his conviction for

aggravated sexual assault. In this appeal, he contends the trial court erred by giving

a definition of “reasonable doubt” in the jury charge and contends the trial court

lacked jurisdiction over his case because the case was not transferred to the court’s

docket. We affirm.

Background

The grand jury that indicted appellant for aggravated sexual assault was

impaneled by Dallas County Criminal District Court No. 4 for a term that began in January 2019. The indictment alleged that in November 2003, appellant

intentionally and knowingly caused the sexual organ of the complainant, without her

consent, to contact appellant’s sexual organ and by acts or words occurring in the

complainant’s presence threatened to cause, or placed the complainant in fear of,

death, serious bodily injury, and kidnapping. The indictment further alleged two

prior felonies as enhancements. It was filed in the 363rd District Court on March 5,

2019. A jury found appellant guilty as charged in the indictment, and the trial judge

assessed a life sentence.

Jury Charge

In his first issue, appellant complains of the following language in the jury

charge: “The prosecution need not prove guilt beyond all possible doubt. The

prosecution’s proof must exclude all reasonable doubt concerning the Defendant’s

guilt.”1 He maintains that this instruction constituted an impermissible definition of

“reasonable doubt” under Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App.

2000), which indicated that the better practice is to give no definition for the term.

We reject appellant’s argument, as we have on previous occasions. See

Bullock v. State, 673 S.W.3d 758, 767 & n.2 (Tex. App.—Dallas 2023, no pet.)

(collecting cases). This Court has long held that the complained-of instruction does

1 After we notified the parties that the clerk’s record did not contain the jury charge, it was determined the original charge was missing. The parties agreed to submit an unsigned charge for purposes of the record, and the quoted language is from that charge. –2– not define “reasonable doubt.” O’Canas v. State, 140 S.W.3d 695, 701–02 (Tex.

App.—Dallas 2003, pet. ref’d); Bates v. State, 164 S.W.3d 928, 931 (Tex. App.—

Dallas 2005, no pet.). Further, the court of criminal appeals has held that a trial court

does not abuse its discretion by including the instruction in the jury charge. See

Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010); Woods v. State, 152

S.W.3d 105, 115 (Tex. Crim. App. 2004). We overrule appellant’s first issue.

Jurisdiction

In his second issue, appellant contends the trial court, the 363rd District Court,

lacked jurisdiction over this case because Criminal District Court No. 4, which

impaneled the grand jury, did not enter a transfer order. We have rejected this issue

numerous times in appeals in which appellant’s counsel represented an appellant and

will do so again today. See Bullock, 673 S.W.3d at 768–69 & n.3 (noting that as of

July 2023, we rejected this issue in over 75 prior cases in which this counsel

represented an appellant).

When a defendant fails to file a plea to the jurisdiction, he waives the right to

complain that a transfer order does not appear in the record. Id. at 768. Because

appellant did not file a plea to the jurisdiction, he has waived this issue. Even if

appellant had preserved error, there is none because the record shows the trial court

possessed jurisdiction over the case as the court in which the indictment was first

filed. See TEX. CODE CRIM. PROC. ANN. art. 4.16 (“When two or more courts have

concurrent jurisdiction of any criminal offense, the court in which an indictment or

–3– a complaint shall first be filed shall retain jurisdiction except as provided in Article

4.12,” which applies to misdemeanor cases.); Bullock, 673 S.W.3d at 769–70. We

overrule appellant’s second issue.

We affirm the trial court’s judgment.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

Goldstein, J., dissenting

Do Not Publish TEX. R. APP. P. 47.2(b). 230476F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOHN RICHARD ALLEN, On Appeal from the 363rd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F19-00144-W. No. 05-23-00476-CR V. Opinion delivered by Justice Reichek. Justices Goldstein and THE STATE OF TEXAS, Appellee Garcia participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 24th day of June, 2024.

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