No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. FRED ANDERSON, Appellant. THE STATE OF TEXAS, Appellee

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1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS FRED ANDERSON, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from Criminal District Court No. 5 of Dallas County, Texas Cause No. F L The Honorable Carter Thompson, Judge Presiding BRIEF FOR APPELLEE, THE STATE OF TEXAS Counsel of Record: Craig Watkins G. Brian Garrison Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Dallas County District Attorney s Office 133 N. Riverfront Blvd., LB 19 Dallas, Texas (214) (telephone) (214) (fax) ORAL ARGUMENT IS REQUESTED ONLY IF APPELLANT IS ALSO REQUESTING ORAL ARGUMENT

2 TABLE OF CONTENTS TABLE OF INTERESTED PERSONS... ii TABLE OF AUTHORITIES... iii SUMMARY OF THE CASE... 1 ISSUE PRESENTED... 2 STATEMENT OF THE FACTS... 2 SUMMARY OF THE ARGUMENTS... 2 ARGUMENTS AND AUTHORITIES... 3 I. The State s response to Appellant s first point of error: the trial court did not lack jurisdiction to render judgment against Appellant PRAYER... 6 CERTIFICATE OF SERVICE... 6 i

3 TABLE OF INTERESTED PERSONS Appellant Appellant s Counsel at Trial Appellant s Counsel on Appeal State s Counsel at Trial State s Counsel on Appeal Fred Anderson Allan Fishburn 211 N. Record., Ste. 450 Dallas, Texas Allan Fishburn 211 N. Record., Ste. 450 Dallas, Texas Herschel Woods Assistant District Attorney Dallas County District Attorney s Office 133 N. Riverfront Blvd., LB 19 Dallas, Texas G. Brian Garrison Assistant District Attorney Dallas County District Attorney s Office 133 N. Riverfront Blvd., LB 19 Dallas, Texas ii

4 CONSTITUTIONAL DOCUMENTS TABLE OF AUTHORITIES TEX. CONST. art. V, TEXAS STATUTES TEX. GOV T CODE ANN TEX. GOV T CODE ANN (d)... 3 TEX. GOV T CODE ANN (a)... 4 TEXAS COURT OF CRIMINAL APPEALS CASES Flores v. State, 487 S.W.2d 122 (Tex. Crim. App. 1972)... 3 TEXAS COURT OF APPEALS CASES Bridwell v. State, Nos CR, 2008 Tex. App. LEXIS 1362 (Tex. App. Dallas February 22, 2008, no pet.) (not designated for publication)... 4, 5 TEXAS RULES AND PROCEDURES TEX. CODE CRIM. PROC. ANN. art TEX. CODE CRIM. PROC. ANN. art iii

5 TO THE HONORABLE COURT OF APPEALS: The State of Texas respectfully submits the instant brief in response to the brief of Appellant, Fred Anderson ( Appellant ), on behalf of Craig Watkins, the Criminal District Attorney of Dallas County, Texas. This is an appeal from Criminal District Court No. 5 of Dallas County, Texas Cause No. F L. SUMMARY OF THE CASE Appellant was charged by indictment alleging that he committed the state jail felony offense of theft of metals in violation of section of the Texas Penal Code. 1 Appellant waived his right to a jury trial and entered a plea of not guilty. 2 A bench trial ensued, and after receiving all of the evidence, the trial court found Appellant guilty. 3 Appellant pled true to the two enhancement paragraphs in the indictment, and the trial court sentenced Appellant to incarceration for a period of two years in Texas Department of Criminal Justice Institutional Division. 4 Appellant timely filed notice of appeal. 5 1 C.R.: 2, 9-10; R.R.: 5. 2 C.R.: 8-10; R.R.: 5. 3 C.R.: 9-10; R.R.: C.R.: 2, 9-10; R.R.: C.R.: 12. 1

6 ISSUE PRESENTED Whether, under Texas law, the trial court lacked jurisdiction to adjudicate Appellant s case in absence of a formal order transferring Appellant s case from the 203rd Judicial District Court, the court of indictment, to Criminal District Court No. 5, the court of adjudication. STATEMENT OF THE FACTS The State adopts, generally, Appellant s statement of facts. SUMMARY OF THE ARGUMENTS This Court should overrule Appellant s two points of error and affirm the judgment of the trial court. Appellant s sole point of error is without merit for two reasons. While Article 4.16 of the Texas Code of Criminal Procedure provides that the court of indictment retains jurisdiction over the proceeding, article 4.16 does not divest other courts, having concurrent jurisdiction over the proceeding, of jurisdiction or render the actions of other courts void even in the absence of a formal transfer order. Moreover, Appellant may not raise this issue for the first time on appeal because it was apparent at the time of trial. 2

7 ARGUMENTS AND AUTHORITIES I. The State s response to Appellant s first point of error: the trial court did not lack jurisdiction to render judgment against Appellant. This Court should overrule Appellant s first point of error because the trial court did not lack jurisdiction to render judgment against Appellant even in the absence of a formal transfer order. Article V, section 8 of the Texas Constitution provides that district court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except where such jurisdiction is conferred by the Constitution or other law on a different court, tribunal, or administrative body. 6 Article 4.05 of the Texas Code of Criminal Procedure provides that district courts and criminal district courts shall have original jurisdiction in felony criminal cases, 7 and section (d) of the Texas Government Code further provides that the district courts and criminal district courts in Dallas County shall have concurrent jurisdiction. 8 While article 4.16 of the Texas Code of Criminal Procedure provides that, when two or more courts have concurrent jurisdiction of any criminal offense, the court where the indictment was first filed retains jurisdiction, 9 the purpose of Article 4.16 is to prevent any confusion or contention between different courts having concurrent jurisdiction and each seeking to exercise jurisdiction and not to shield an accused from prosecution. 10 Moreover, in any county in which there are two or more district courts, 6 TEX. CONST. art. V, 8; TEX. GOV T CODE ANN TEX. CODE CRIM. PROC. ANN. art TEX. GOV T CODE ANN (d). 9 TEX. CODE CRIM. PROC. ANN. art Flores v. State, 487 S.W.2d 122, 125 (Tex. Crim. App. 1972). 3

8 the judges of those courts may, in their discretion, transfer any criminal case or proceeding on their docket to the docket of one of those other district courts. 11 While the transfer of a proceeding from the docket of one court to the docket of another is, perhaps, preferably affected by orders formally transferring and receiving the proceeding, the absence of such orders is a mere procedural error and does not divest the transferee court of jurisdiction or render its actions void. 12 At best, the absence of a transfer order makes the transferee court s action subject to a timely plea to the jurisdiction. 13 However, where the appellant fails to file a timely plea to the jurisdiction, he or she waives any right to complain that a transfer order does not appear in the record. 14 In the case sub judice, this Court should overrule Appellant s sole point of error. Appellant contends that, in absence of an order formally transferring Appellant s case from the 203rd Judicial District Court, the court of indictment, to Criminal District Court No. 5, the court of adjudication, Criminal District Court No. 5 lacked jurisdiction to adjudicate his case. 15 The absence of a formal transfer order was apparent to Appellant and to Appellant s trial counsel, who, incidentally, is now his appellate counsel, at the time of trial. 16 Thus, Appellant has waived any complaint he may have had with regard to the trial court s jurisdiction in the absence of a formal transfer order because he failed 11 TEX. GOV T CODE ANN (a). 12 Bridwell v. State, Nos CR, 2008 Tex. App. LEXIS 1362, at*5-6 (Tex. App. Dallas February 22, 2008, no pet.) (not designated for publication) (citations omitted). 13 Id., at*6 (citations omitted). 14 Id. (citations omitted). 15 Appellant s Br Bridwell, Nos CR, 2008 Tex. App. LEXIS 1362, at*5-6; 4

9 to file a plea to the jurisdiction or otherwise challenge the trial court s jurisdiction at that time. 17 Appellant has acknowledged that legal precedent is against him but, nevertheless, urges this Court to reconsider the issue arguing that these cases simply cite to their antecedents, without any Constitutional or statutory authority for the proposition that a jurisdictional defect can be cured by procedural default. 18 In Bridwell v. State, a whitehorse case if there ever was one, this Court explicitly rejected this exact argument. 19 Accordingly, Appellant has failed to establish that the trial court lacked jurisdiction to adjudicate the instant case, and this Court should, without hesitation, overrule Appellant s sole point of error. 17 Compare Appellant s Br with Bridwell, Nos CR, 2008 Tex. App. LEXIS 1362, at*7 (citations omitted). 18 Appellant s Br Bridwell, Nos CR, 2008 Tex. App. LEXIS 1362, at*8 (citations omitted). 5

10 PRAYER The State of Texas prays that this Court will overrule Appellant s sole point of error and affirm the judgment of the trial court. Respectfully submitted, Craig Watkins Criminal District Attorney Dallas County, Texas G. Brian Garrison Assistant District Attorney State Bar No Dallas County District Attorney s Office 133 N. Riverfront Blvd., LB 19 Dallas, Texas (214) (telephone) (214) (fax) CERTIFICATE OF SERVICE I hereby certify that a true copy of this Appellee s Brief has been served on Appellant s Counsel on Appeal, the Hon. Allan Fishburn, 211 N. Record, Ste. 450, Dallas, Texas by post on the 8th day of December, G. Brian Garrison 6

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