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Date: 02-08-2020

Case Style:

German Gutierrez v. The State of Texas

Case Number: 01-18-00624-CR

Judge: Peter Kelly

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: The Honorable Kim K Ogg
Daniel C. McCrory
Eric Kugler
Clinton A. Morgan

Defendant's Attorney:


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Gutierrez and an accomplice stole a man’s car at gunpoint from a car wash.
A Harris County grand jury indicted Gutierrez for aggravated robbery with a
deadly weapon. He pleaded guilty without an agreed sentencing recommendation.
After a hearing on the presentence investigation, the court sentenced him to 25
years’ imprisonment. He appealed.
In his sole issue, Gutierrez contends that his judgment of conviction is void.
He argues that the trial court, the 184th District Court of Harris County, Texas,
lacked jurisdiction over his case because the underlying indictment was presented
to the district clerk by the grand jury empaneled by the 178th District Court of
Harris County, Texas.
The 178th and 184th District Courts are both criminal district courts in
Harris County, Texas. They share the same clerk, i.e. the Harris County District
Clerk, and both have original jurisdiction in felony criminal cases. The grand jury
for the 178th District Court returned a true bill of indictment for the charged
offense, which was then presented to the Harris County District Clerk, as
demonstrated by the clerk’s original file stamp, and filed in the 184th District

The Texas Constitution provides that “District Judges may exchange
districts, or hold courts for each other when they may deem it expedient, and shall
do so when required by law.” See TEX. CONST. art. V, § 11. All state district courts
within the same county have jurisdiction over cases in that county, and criminal
district courts have original jurisdiction over felony criminal cases in that county.
TEX. CODE CRIM. PROC. art. 4.05; TEX. GOV’T CODE § 74.094; Henderson v. State,
526 S.W.3d 818, 820 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). In counties
with two or more district courts, the judges of the courts “may adopt rules
governing the filing and numbering of cases, the assignment of cases for trial, and
the distribution of the work of the courts as in their discretion they consider
necessary or desirable for the orderly dispatch of the business of the courts.” TEX.
GOV’T CODE § 24.024; see also TEX. GOV’T CODE § 74.093 (addressing adoption
of local rules of administration to provide, in part, for assignment, docketing
transfer, and hearing of all cases). The district clerk for each county “is the clerk of
the court for all districts in that county.” Henderson, 526 S.W.3d at 820 (quoting
Ex parte Alexander, 861 S.W.2d 921, 922 (Tex. Crim. App. 1993), superseded by
statute on other grounds as stated in Ex parte Burgess, 152 S.W.3d 123, 124 (Tex.
Crim. App. 2004)).
In multi-court counties, like Harris County, a specific district court may
impanel a grand jury, but not all cases considered by that court’s grand jury are

necessarily assigned to that court. See Henderson, 526 S.W.3d at 820; Davis v.
State, 519 S.W.3d 251, 255 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). (“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.”);
Hernandez v. State, 327 S.W.3d 200, 204 (Tex. App.—San Antonio 2010, pet.
ref’d); Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet.
ref’d); Tamez v. State, 27 S.W.3d 668, 670 n.1 (Tex. App.—Waco 2000, pet. ref’d)
(noting that “the judges of the Harris County district courts exercising criminal
jurisdiction have adopted a procedure by which indictments are filed in each court
on a rotating basis without reference to the court which empaneled the grand jury
presenting the indictments”). In other words, one court may impanel a grand jury,
and if the grand jury returns an indictment, the case may be filed in another court
of competent jurisdiction within the same county.
Gutierrez argues that the text of the Texas Constitution and Texas Code of
Criminal Procedure contemplate that grand juries may return indictments only to
the court that impaneled them. According to the Texas Constitution, “[t]he
presentment of an indictment or information to a court invests the court with
jurisdiction of the cause.” TEX. CONST. art. V § 12(b). (emphasis added). The
Texas Code of Criminal Procedure uses the language “the court” in reference to the
grand jury. See TEX. CODE CRIM. PROC. arts. 19.18–19.22; 20.08 (prohibiting a

grand jury from adjourning for more than three days without “consent of the
In addition to stating that jurisdiction vests with the presentment of an
indictment, article V, section 12 of the Texas Constitution also states, “[t]he
practice and procedures related to the use of indictments and informations . . . are
provided by law.” Id. This section of the constitution was amended in 1985. Before
the amendment, a substantive defect in an indictment or information was a
fundamental defect that deprived the court of jurisdiction, resulting in a void
judgment, and the deficiency could be raised for the first time on appeal, including
years after conviction. See DeDenato v. State, 819 S.W.2d 164, 168 (Tex. Crim.
App. 1991) (Maloney, J., concurring) (discussing the history of the 1985
constitutional amendment). The amendment gave the legislature the authority to
regulate the practices and procedures relating to indictments. See Studer v. State,
799 S.W.2d 263, 271 (Tex. Crim. App. 1990) (reviewing legislative history and
materials and stating, “Clearly the perceived evil [the legislature was] correcting
was the raising of indictment defects for the first time after a trial and conviction
and the subsequent reversal of that conviction because of that defect.”). A literal
reading of article V, section 12 could lead to absurd results. DeDonato, 819
S.W.2d at 168 (Maloney, J., concurring) (“If the mere presentment of an
indictment could vest jurisdiction in any court, then absent an objection from the

defendant, a capital murder case could be properly tried in a county court. I cannot
believe that such a result was the legislature’s or the voters’ intent.”).
To the extent there may be friction between the use of an indefinite article in
the constitution and a definite article in some statutes, the fundamental jurisdiction
conferred by the constitution is not affronted by the filing procedure that occurred
here. We presume that when a statute is enacted, the legislature intended
compliance with the Texas Constitution. TEX. GOV’T CODE § 311.021(1).
Furthermore, it is well established that reasonable construction should be given to
constitutional provisions and that constitutional and statutory provisions will not be
construed so as to lead to absurd conclusions, great public inconvenience, or unjust
discrimination, if any other interpretation can be reasonably indulged. Cramer v.
Sheppard, 167 S.W.2d 147, 155 (1942); see also Boykin v. State, 818 S.W.2d 782,
785–86 (Tex. Crim. App. 1991) (stating that when the plain language of a statute
would lead to absurd consequences that the legislature could not possibly have
intended, the court should not apply the language literally). We cannot say that the
legislature’s use of “the court” in certain criminal procedure statutes and “a court”
in a constitutional provision demonstrates the intent that a grand jury in a multi

district county may only return an indictment to the specific district court that
impaneled it.*
Finally, we note that any procedural challenge to the transfer of a case
within a county is not a jurisdictional defect. See Davis, 519 S.W.3d at 256.
Gutierrez concedes that the Harris County Direct Filing Order was appropriately
applied to the docketing of his case. Gutierrez did not challenge the presentment of
the indictment or the transfer between district courts in the trial court. Procedural
deficiencies in an indictment may not be challenged for the first time on appeal.
Henderson, 526 S.W.3d at 821.
We hold that the trial court had jurisdiction in this case and that Gutierrez
waived any non-jurisdictional issue related to the indictment by failing to complain
in the trial court. We overrule Gutierrez’s sole issue.

Outcome: We affirm the judgment of the trial court.

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