Opinion
NO. 01-16-00748-CR
06-29-2017
KERNELIUS SHEPHERD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas
Trial Court Case No. 1503669
MEMORANDUM OPINION
The State charged Appellant, Kernelius Shepherd, with sexual assault. The jury found him guilty and assessed punishment at ten years' confinement. In one issue on appeal, Appellant argues that the trial court lacked jurisdiction over the case because the grand jury that indicted him sat in a different Harris County District Court than the one in which his case was heard.
See TEX. PENAL CODE ANN. § 22.011(a)(1)(B), (b)(2) (West 2011).
We affirm.
Background
A grand jury returned an indictment alleging that Appellant sexually assaulted the complainant. The indictment indicated that it was filed in the 248th Harris County District Court, but the stamp of the grand jury foreman suggests that it was the 338th District Court grand jury that returned the indictment. Appellant did not challenge the indictment at any time prior to or during trial.
Filing of Indictment
In his sole issue on appeal, Appellant argues that the trial court lacked jurisdiction over the case because the grand jury that indicted him sat in a different Harris County District Court than the one in which his case was heard. Appellant contends that a grand jury serves a particular court, not a particular county. He further argues that, when the 338th District Court's grand jury presented the indictment, it did not vest jurisdiction over the case in the 248th District Court. Appellant argues this is a jurisdictional defect that can be raised for the first time on appeal.
This argument was recently considered and rejected in this Court's opinion in Davis v. State, No. 01-16-00079-CR, 2017 WL 1281426, at *2-*4 (Tex. App.— Houston [1st Dist.] Apr. 6, 2017, no pet. h.). Grand juries are impaneled to inquire into indictable offenses. Id. at *2. After the grand jury votes concerning presentment of an indictment, the State can file in any court that has jurisdiction over the case. Id. District courts within a county can exchange cases throughout their proceedings, including preliminary proceedings. Id. at *3. "If a grand jury in one district court returns an indictment in a case, the case nevertheless may be then assigned to any district court within the same county." Id. Any errors resulting from transfers of cases within a county, then, are not jurisdictional errors. Id.; accord Hernandez v. State, No. 01-15-00837-CR, 2017 WL 1416877, at *2 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, no. pet. h.) (mem. op., not designated for publication).
Because this is not a jurisdictional matter, Appellant's failure to challenge the indictment or the proceedings in the trial court constitutes a waiver of his right to challenge any procedural irregularity. See, e.g., Mosley v. State, 354 S.W.2d 391, 393-94 (Tex. Crim. App. 1962); Davis, 2017 WL 1281426, at *4; Hernandez v. State, 327 S.W.3d 200, 204-05 (Tex. App.—San Antonio 2010, pet. ref'd); Tamez v. State, 27 S.W.3d 668, 670-71 (Tex. App.—Waco 2000, pet. ref'd).
We overrule Appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Higley, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).