Opinion
No. 11-05-00127-CR
November 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 204th District Court Dallas County, Texas Trial Court Cause No. F-0455480-TQ.
OPINION
Cornelius Lejohn Robinson appeals his conviction by a jury of the offense of aggravated robbery. The jury, finding two enhancement paragraphs to be true, assessed his punishment at thirty-five years in the Texas Department of Criminal Justice, Institutional Division. Robinson asserts in two issues that his conviction is void because the trial court never acquired jurisdiction of the case and that the trial court erred by refusing his request for a charge on the lesser included offenses of simple robbery and theft. We affirm. Robinson contends in issue one that his conviction is void because the trial court never acquired jurisdiction because the indictment was returned to the 283rd District Court of Dallas County but he was convicted in the 204th District Court of Dallas County. The record does not contain an order of transfer of his case from the 283rd District Court to the 204th District Court. The absence of a transfer order in a record does not invalidate a judgment in a case in which the indictment was returned in a court other than the one in which the trial was conducted. Lemasurier v. State, 91 S.W.3d 897, 899 (Tex.App.-Fort Worth 2002, pet. ref'd). The fact that no transfer order is contained in the record does not render the action of the transferee court void but merely makes it subject to a valid and timely plea to the court's jurisdiction. Id.; Sharkey v. State, 994 S.W.2d 417, 419 (Tex.App.-Texarkana 1999, no pet.); Garcia v. State, 901 S.W.2d 731, 732-33 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). If a defendant does not 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. Lemasurier, 91 S.W.3d at 899-900; Sharkey, 994 S.W.2d at 419. Robinson did not file a plea to the jurisdiction in the trial court and has waived any error with respect to the lack of a transfer order. Lemasurier, 91 S.W.3d at 900. Robinson relies on the cases of Lackey v. State, 574 S.W.2d 97, 100 (Tex.Crim.App. 1978); McAffee v. State, 363 S.W.2d 941 (Tex.Crim.App. 1963); Miller v. State, 909 S.W.2d 586 (Tex.App.-Austin 1995, no pet.); Thomas v. State, 751 S.W.2d 601, 602 n. 3 (Tex.App.-Texarkana 1988, pet. ref'd); and Whitehead v. State, 710 S.W.2d 645, 653 (Tex.App.-Beaumont 1986), rev'd on other grounds, 745 S.W.2d 374 (Tex.Crim.App. 1988). We have examined all of these cases and find that they are distinguishable because none involves a valid charging instrument and an absence of an order of transfer in the record. We overrule issue one. Robinson urges in issue two that the trial court erred by denying his request for a charge on the lesser included offenses of simple robbery and theft. It is undisputed that robbery and theft are lesser included offenses of aggravated robbery. Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994); Little v. State, 659 S.W.2d 425, 426 (Tex.Crim.App. 1983). In determining if a defendant is entitled to a lesser included offense instruction, a two-prong test applies: (1) the lesser included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of the lesser included offense. Lofton v. State, 45 S.W.3d 649, 651 (Tex.Crim.App. 2001). Because it is undisputed that theft and robbery are lesser included offenses of the offense of aggravated robbery, we must only determine if there is any evidence in the record that would permit a jury rationally to find that Robinson is guilty only of theft or of simple robbery. The indictment alleged that, in obtaining and maintaining control of the complainant's money, Robinson intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and used and exhibited a firearm, which is a deadly weapon. If there is evidence in the record showing that Robinson appropriated the complainant's property without the complainant's effective consent but did not threaten the complainant or place the complainant in fear of imminent bodily injury and did not use a firearm, then he is entitled to an instruction on the lesser included offense of theft. Tex. Pen. Code Ann. § 31.03(a)(b) (Vernon Supp. 2006). If there is evidence in the record that Robinson did threaten the complainant or place the complainant in fear of imminent bodily injury or death but did not use or exhibit a deadly weapon, then he is entitled to an instruction on the lesser included offense of robbery. TEX. PEN. CODE ANN. § 29.02 (Vernon 2003). The complainant testified that Robinson pulled out a gun, demanded his money and watch, and subsequently left with his truck. Robinson contends that a statement given by Jody Ann Surles, a woman who was with Robinson, supported an instruction on a lesser included offense because it constituted some evidence that he took the complainant's property without any threat and without any firearm. The statement to which Robinson refers is silent as to whether Robinson threatened the complainant or whether Robinson exhibited a firearm and, therefore, contains no evidence that Robinson did not threaten the complainant or did not use a firearm. The only other reference Robinson makes to other evidence that would support such an instruction is his statement that no other witness saw any gun, any robbery, or any theft. The complainant testified that Robinson took his truck and other property after threatening him with a firearm. He indicated that this occurred after he had agreed to give Robinson and Surles a ride to go cash a check. The other witnesses to which Robinson refers saw the complainant leave voluntarily with Robinson and Surles or talked with the complainant after the robbery, but there is no evidence they were present when the robbery occurred. Therefore, their testimony that they saw no theft, no robbery, or no gun did not constitute any evidence that Robinson did not threaten the complainant or that he did not use a firearm in the commission of the robbery. There being no evidence in the record that Robinson did not threaten the complainant or did not use or exhibit a firearm when taking the complainant's property, the trial court did not err by denying Robinson's request for an instruction on the lesser included offenses of theft or simple robbery. We overrule issue two. The judgment is affirmed.