Phillips, Kyle v. State

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

KYLE PHILLIPS                             Appellant, v. THE STATE OF TEXAS                             Appellee.	'	No. 08-00-00211-CR Appeal from the 394th District Court of Brewster County, Texas (TC# 3403)

O P I N I O N

Kyle Phillips appeals from his conviction for aggravated robbery.  Upon a finding of guilt by a jury, the trial court assessed Appellant=s punishment at imprisonment for six (6) years.  We affirm the judgment of the trial court.

I.  SUMMARY OF THE EVIDENCE

Appellant was indicted by the grand jury of the 394th Judicial District Court for an aggravated robbery alleged, and eventually proven, to have been committed in Brewster County on October 27, 1998.  On June 18, 1999, Appellant filed a motion to quash the indictment on the ground that the 83rd District Attorney who presented the case to the grand jury did not reside in the 394th Judicial District in violation of the constitutional residency requirement found in Article 16, Section 14 of the Texas Constitution.^[1]  He further argued that because the Legislature has not provided for the election of a district attorney for the 394th Judicial District, only the Brewster County Attorney is permitted to represent the State in grand jury proceedings.  Consequently, he claimed that the 83rd District Attorney=s participation in the grand jury violated Sections 20.011, 20.04, 20.05, and 20.20 of the Texas Code of Criminal Procedure.^[2]  Appellant did not ask the trial court to rule on this motion until the day of trial, October 19, 2000.  Appellant did not offer any evidence in support of the motion at the hearing, but the trial court took judicial notice that the elected 83rd District Attorney, the Honorable Albert Valadez, lived in Pecos County.^[3]  The trial court denied the motion and the case proceeded to trial. 

                                              Authority of 83rd District Attorney

                              to Represent the State in the 394th Judicial District

In his sole point of error, Appellant challenges the authority of the 83rd District Attorney to represent the State in the 394th Judicial District Court. 

1.  Relevant Statutory Provisions

In order to better understand the numerous arguments raised by Appellant, we will briefly set forth the relevant statutes.  Prior to September 1, 1995, the 83rd Judicial District was composed of Brewster, Jeff Davis, Pecos, Presidio, Reagan, and Upton Counties. Acts 1985, 69th Leg., R.S., ch. 480, ' 1, 1985 Tex. Gen. Laws 1720, 1762 [former Tex. Gov=t Code ' 24.185(a).  Pursuant to the version of Section 43.141 in effect at the time, the voters of the 83rd Judicial District elected the 83rd District Attorney.  Acts 1985, 69th Leg., R.S., ch. 480, ' 1, 1985 Tex. Gen. Laws 1720, 1928 (former Tex. Gov=t Code 43.141).  In 1995, the Legislature amended Section 24.185(a) to remove Brewster, Jeff Davis, and Presidio counties from the 83rd Judicial District and it placed those three counties, along with Culberson and Hudspeth counties, in the newly-created 394th Judicial District.  Acts 1995, 74th Leg., R.S., ch. 704, ' 18, 1995 Tex. Gen. Laws 3716 [current version found at Tex. Gov=t Code Ann. ' 24.185(a) (Vernon Supp. 2002)]; Acts 1995, 74th Leg., R.S., ch. 704, ' 20, 1995 Tex. Gen. Laws 3717 [current version found at Tex. Gov=t Code Ann. ' 24.539 (Vernon Supp. 2002).^[4]  In 1999, the Legislature added Terrell and Val Verde counties to the 83rd Judicial District so that it was composed of Pecos, Reagan, Terrell, Upton, and Val Verde counties.  Acts 1999, 76th Leg., R.S., ch. 1337, ' 18, 1999 Tex. Gen. Laws 4550 (former Tex. Gov=t Code ' 24.185).^[5]  Consistent with these changes, the Legislature also amended Section 43.141 of the Government Code to provide that the voters of Brewster, Jeff Davis, Pecos, Presidio, Reagan, and Upton counties elect a district attorney for the 83rd Judicial District.  Acts 1995, 74th Leg., R.S., ch. 704, ' 22, 1995 Tex. Gen. Laws 3717 [current version found at Tex. Gov=t Code Ann. ' 43.141(a) (Vernon Supp. 2002)].  Further, former Section 43.141(b) provided that the district attorney for the 83rd district also acts as the district attorney for the 394th Judicial District in Brewster, Jeff Davis, and Presidio counties. Acts 1995, 74th Leg., ch. 704, ' 22, 1995 Tex. Gen. Laws 3717 [current version found at Tex. Gov=t Code Ann. ' 43.141(b) (Vernon Supp. 2002)]. 

2.  The Arguments Raised on Appeal

Appellant argues that when the Legislature created the 394th Judicial District in 1995, it did not provide for the election of a district attorney in that district, and therefore, only the county attorney is authorized to represent the State before the grand jury or in any criminal prosecutions in Brewster County.  Appellant further contends that Section 43.141(b) of the Texas Government Code, which authorizes the 83rd District Attorney to prosecute cases in the 394th District Court in Brewster County, violates Article 16, Section 14 of the Texas Constitution because it is impossible for the 83rd District Attorney to reside in both the 83rd and 394th Judicial Districts.  By virtue of this same constitutional provision, he maintains that the office of the 83rd District Attorney was automatically vacated on the effective date of the amended statutes, September 1, 1995, and therefore, his indictment must be quashed because the 83rd District Attorney lacked authority to present the case to the grand jury.

3.  Waiver

In his motion to quash, Appellant complained only of the 83rd District Attorney=s participation in the grand jury proceedings.  He did not file a motion to disqualify the 83rd District Attorney from prosecuting the case against him following indictment nor did he otherwise object to the 83rd District Attorney=s continued participation in the case.^[6]  Despite the failure to raise such an objection in the trial court, Appellant argues generally on appeal that his conviction is invalid because the 83rd District Attorney is not permitted to participate in any aspect of the prosecution against him.  Assuming Appellant would have had standing to raise such an argument in the trial court, we find he has failed to preserve it by raising an appropriate and timely objection.

It is well established that in order to preserve error, the complaint on appeal must comport with the objection lodged at trial.  Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); see Tex. R. App. P. 33.1.  While Appellant=s motion to quash the indictment is the proper vehicle to assert that an unauthorized person participated in the grand jury proceedings, we find it inadequate to preserve any additional complaint that the prosecutor was disqualified from participating in the trial.

4.  The Motion to Quash

Turning to the denial of the motion to quash the indictment, Appellant raises intriguing issues which can only be resolved by a complex analysis of the relevant constitutional and statutory provisions.  It is unnecessary to address the merits of these issues, however, because Appellant failed to produce any evidence in the trial court to support his claim that an unauthorized person was present when the grand jury deliberated on the case.

Article 27.03 of the Code of Criminal Procedure governs the grounds on which a motion to set aside an indictment may be sought:

In addition to any other grounds authorized by law, a motion to set aside an indictment or information may be based on the following:

1.  That it appears by the records of the court that the indictment was not found by at least nine grand jurors, or that the information was not based upon a valid complaint;

2.  That some person not authorized by law was present when the grand jury was deliberating upon the accusation against the defendant; or was voting upon the same; and

3.  That the grand jury was illegally impaneled; provided, however, in order to raise such question on motion to set aside the indictment, the defendant must show that he did not have an opportunity to challenge the array at the time the grand jury was impaneled.

Tex. Code Crim. Proc. Ann. art. 27.03 (Vernon 1989). 

Given Appellant=s argument that the 83rd District Attorney was not authorized to present the case against him to the grand jury for the 394th District Court, we necessarily presume that Appellant bases his argument on Article 27.03(2).  Appellant did not, however, present any evidence in the trial court to show that the 83rd District Attorney was, in fact, present when the grand jury deliberated on the indictment or voted to return a true bill.

In Payne v. State, 502 S.W.2d 812 (Tex. Crim. App. 1974), the Court of Criminal Appeals addressed the impact of a failure to produce evidence in sufficiently similar circumstances.  There, the prosecutor had filed a motion disqualifying himself approximately six months after the indictment had been returned against the defendant.  The defendant filed a motion to quash the indictment alleging that the district attorney was disqualified by virtue of Article 2.08 of the Code of Criminal Procedure^[7] and should not have presented the case against him to the grand jury.  Due to the lack of any evidence that the district attorney had been present when the grand jury deliberated or voted, the Court found no error in overruling the motion to quash Payne, 502 S.W.2d at 813.  Applying the same reasoning here, Appellant failed to produce any evidence at trial that the 83rd District Attorney was present when the grand jury deliberated or voted on the indictment.  Consequently, we are unable to find that the trial court erred in overruling Appellant=s motion to quash.  We overruled Appellant=s sole point of error.

Having overruled Appellant=s sole point of error, we affirm the judgment of the trial court.

August 30, 2002

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

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^[1]  Tex. Const. Article 16, Section14 provides that:  AAll civil officers shall reside within the State; and all district or county officers within their districts or counties, and shall keep their offices at such places as may be required by law; and failure to comply with this condition shall vacate the office so held.@

^[2]  Article 20.011 prescribes who may be present in a grand jury room while the grand jury is conducting proceedings, and specifically provides for the presence of the attorney representing the State.  Tex. Code Crim. Proc. Ann. art. 20.011 (Vernon Supp. 2002).  Article 20.04 permits the attorney representing the State to question witnesses and precludes any other person from addressing the grand jury about a matter before the grand jury.  Tex. Code Crim. Proc. Ann. art. 20.04 (Vernon Supp. 2002).  Pursuant to Article 20.05, the grand jury is allowed to request the presence of the attorney representing the State for the purpose of obtaining advice.  Tex. Code Crim. Proc. Ann. art. 20.05 (Vernon Supp. 2002).  Finally, Article 20.20 requires to attorney representing the State to prepare the indictments found by the grand jury.  Tex. Code Crim. Proc. Ann. art. 20.05 (Vernon 1977). 

^[3]  In an interesting turn of events, the defense attorney who represented Appellant at trial, the Honorable Frank D. Brown, has since been elected to the office of 83rd District Attorney.  The Court has granted Brown=s motion to withdraw and new appellate counsel has been appointed to represent Appellant.  Because of his position as defense counsel in this case, Brown is not permitted to represent the interests of the State.  See Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon Supp. 2002) (AEach district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely.@).  The Court has been notified that the State is now represented on appeal by Steve Houston.

^[4]  Prior to the 1995 amendments, Culberson and Hudspeth Counties, along with El Paso County, comprised the 210th Judicial District.  Acts 1985, 69th Leg., R.S., ch. 480, ' 1, 1985 Tex. Gen. Laws 1720, 1777 (former Tex. Gov=t Code ' 24.389).  Following the 1995 amendments, the 210th Judicial District is composed solely of El Paso County.  See Tex. Gov=t Code Ann. ' 24.389 (Vernon Supp. 2002).  The district attorney for the 34th Judicial District also acts as district attorney for the 394th Judicial District in Culberson and Hudspeth counties.  Tex. Gov=t Code Ann. ' 43.120 (Vernon Supp. 2002).

^[5]  In 2001, the Legislature again amended Section 24.185 to remove Reagan County from the 83rd Judicial District so it is currently composed of Pecos, Terrell, Upton, and Val Verde counties.  Tex. Gov=t Code Ann. ' 24.185 (Vernon Supp. 2002).  Reference to Reagan County was likewise removed from Section 43.141, so the 83rd District Attorney is currently elected by the voters of Brewster, Jeff Davis, Pecos, Presidio, and Upton counties.  See Tex. Gov=t Code Ann. ' 43.141 (Vernon Supp. 2002).

^[6]  Our opinion should not be read as affirmatively holding that a defendant has standing to raise such a complaint in the trial court.  While we agree that an unauthorized person may not participate in grand jury proceedings, Appellant does not explain how he has standing to generally complain of the 83rd District Attorney=s asserted lack of authority to prosecute him or how it would invalidate his conviction.  We simply point out that Appellant did not bring the asserted error to the attention of the trial court.

^[7]  Article 2.08 precludes a district or county attorney from being of counsel adverse to the State.  See Tex. Code Crim. Proc. Ann. art. 2.08 (Vernon 1977).