Phifer, Kenneth Dwayne v. State

• Court: Court of Appeals of Texas
• Decided: January 22, 2013
• Docket: 05-12-00947-CR
• Status: Published

Opinion

AFFIRM; Opinion Issued January 22,2013

In The Qtnurt of j\pp eata 1J1iftlJ mistrirt of Wexas at ilallas No. 05-12-00947-CR

KENNETH DWAYNE PHIFER, Appellant

v. THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. Fll-63053-U

OPINION Before Chief Justice Wright and Justices O'Neill and Maloney 1 Opinion by Justice Maloney

The trial court convicted Kenneth Dwayne Phifer of family violence assault, enhanced by

a family violence assault conviction? See TEX. PENAL CODE ANN.§ 22.01(a), (b-1) (West 2011).

The trial court assessed punishment at five years' confinement in the Institutional Division of the

Texas Department of Criminal Justice and a $2,000 fine. In a single issue, appellant complains the

trial court lacked jurisdiction to hear this case and render judgment because the case was never

transferred from the 194th Judicial District Court to the 291 st Judicial District Court. We affirm the

'The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

2 The indictment alleged two felony convictions-family violence assault and burglary of a habitation-and a misdemeanorfamily violence assault conviction . The trial court granted the State's motion to strike the felony convictions. trial court's judgment. The background of the case and the evidence admitted at trial are well known

to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion

pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well

settled. We take judicial notice that the district courts at issue in this case are both located in Dallas

County.

Appellant recites that jurisdiction vested in the 194th Judicial District Court when a grand

jury returned the indictment to that court. He argues jurisdiction remained in that court because the

record does not contain an order from the I 94th Judicial District Court transferring jurisdiction to

the 291st Judicial District Court where the case was heard and judgment was rendered. Appellant

acknowledges that "authority is against his position," but argues those cases cite no "constitutional

or statutory authority that jurisdictional defect can be cured by procedural default."

A grand jury formed and impaneled by a district judge inquires "into all offenses liable to

indictment," and hears all the testimony available before voting on whether to indict an accused.

TEX. CODE CRIM. PROC. ANN. art. 20.09, 20.19 (West 2005); Ex parte Edone, 740 S.W.2d 446,448

(Tex. Crim. App. 1987). A grand jury is "often characterized as an arm of the court by which it is

appointed rather than an autonomous entity." Dallas Cnty. Dist. Attorney v. Doe, 969 S. W.2d 537,

542 (Tex. App.-Dallas 1998, no pet.). After the conclusion oftestimony, a grandjury votes "as

to the presentment of an indictment." TEX. CODE. CRIM. PROC. ANN. art. 20.19. Following

presentment, an indictment is filed in a court with competent jurisdiction, i.e., jurisdiction to hear

the case. See Hultin v. State, 171 Tex. Crim. 425, 351 S.W.2d 248,255 (1961). In counties having

two or more district courts, the judges of the courts may adopt rules governing the filing, numbering,

and assignment of cases for trial, and the distribution of the courts' work they consider necessary or

desirable to conduct the business of the courts. See TEX. Gov'T CODE ANN.§ 24.304 (West 2004);

-2- see also TEX. Gov'T CODE ANN. § 74.093 (West Supp. 2012) (addressing adoption oflocal rules of

administration to provide, in part, for assignment, docketing, transfer, and hearing of all cases).

Thus, a specific district court may impanel a grand jury, however, 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. refd).

Here, the record shows the grand jury was impaneled in the 194th Judicial District Court.

Following the return of appellant's indictment, the case was filed in the 291 st Judicial District Court.

Nothing in the record indicates this case was originally filed in or appeared on the trial docket ofthe

194th Judicial District Court. Because the 291 st Judicial District Court had jurisdiction to hear

appellant's case and render judgment, we overrule appellant's sole issue.

We affirm the trial court's judgment.

Do Not Publish TEX. R. APP. P. 47

-3- C!rnurt nf 1\ppeals ;:

1J1ift4 ilistrict nf Wexas at ilallas JUDGMENT KENNETH DWAYNE PHIFER, Appellant Appeal from the 291 st Judicial District Court ofDallas County, Texas. (Tr.Ct.No. No. 05-12-00947-CR V. F11-63053-U). Opinion delivered by Justice Maloney, Chief THE STATE OF TEXAS, Appellee Justice Wright and Justice O'Neill participating.

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

Judgment entered January 22, 2013.