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The State of Texas v. Robert Michael Gault

Date: 11-17-2022

Case Number: 01-22-00157-CR

Judge: Honorable Judge 339th District Court

Court:

Court of Appeals For The First District of Texas

On appeal from the 339th District Court of Harris County

Plaintiff's Attorney:

The Honorable Kim K Ogg

Jessica A. Caird

Christopher Conrad

Defendant's Attorney:



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Description:

Dallas, Texas – Criminal Defense lawyer represented defendant with a felony offense of murder charge.





On February 13, 2022, officers from the Jersey Village Police Department

were dispatched to an apartment complex related to a shooting. When they arrived,

the officers found the deceased body of an adult man, identified as Dontrae Rashad

Thomas, lying in the parking lot. Richard Michael Gault was standing near Thomas's

body. Gault told the police that he had shot Thomas six times with a firearm but

claimed that he had done so in self-defense.

1 The underlying case is The State of Texas v. Robert Michael Gault, Cause No.

1758852, pending in the 339th District Court of Harris County, Texas, the

Honorable Te'iva Bell, presiding.

3

Gault was holding his cell phone in his hand, and one of the police officers

told Gault to drop the phone so that Gault could be handcuffed. The police removed

other items, including keys, from Gault's pocket and placed them on the ground.

Gault was arrested, and the police collected Gault's cell phone, keys, and other items

from the scene as evidence, securing them in the police department's property room.

The next day, the State presented a complaint against Gault, which was filed

with the district clerk and assigned to the 339th District Court of Harris County (the

district court). In the complaint, the State alleged that Gault had committed the

felony offense of murder. See TEX. PENAL CODE § 19.02(b).

On February 21, 2022—eight days after Thomas was killed—Gault filed a

"Motion for Return of Seized Property,” asking the district court to order the police

to return his cell phone and his keys. He stated that the police had been holding his

property since his arrest "without any probable cause or a valid search warrant” and

"solely [for] the purpose of a fishing expedition.”

That same day, the district court conducted a hearing at which Gault asked the

court to reduce the amount of his bond. Gault also asked the court to grant his motion

to return his cell phone and his keys. The State informed the district court that the

alleged murder offense had just occurred eight days before the hearing, it did not

"have an offense report,” and could not "confirm one way or the other the

circumstances about the defendant's property whatsoever.” The district court stated

4

that, because it did not see a warrant for Gault's cell phone in its file, "[t]here's no

legal authority to hold the phone.” The district court then signed an order granting

Gault's motion, ordering the return of the cell phone and keys.

The next day—February 22, 2022—Gault's counsel emailed the district court,

stating that the Jersey Village Police Department was "refusing to follow the [district

court's] order to return Mr. Gault's cellphone and his keys.” The attorney explained

that she had spoken with the police department, which indicated that they "would

not give us the phone” because they intended to obtain a search warrant for it.

That day, the State also filed a motion to reconsider the district court's order

granting the return of the seized property. The State asserted that it had learned from

the police that Gault's cell phone contained evidence related to the murder and that

the police were "in the process” of obtaining a search warrant for it. In response,

Gault filed a brief in support of his previously granted motion to return the seized

property. He asserted that his cell phone should be returned to him because the State

had not provided evidence showing that his phone contained "contraband” or

evidence related to the alleged murder offense. The district court emailed the parties

instructing them to appear for a hearing on February 23, 2022, to discuss the return

of Gault's property.

At the February 23 hearing, the State asked the district court to reconsider its

order requiring the police to return Gault's cell phone. The State informed the district

5

court that Lieutenant H. Hawley of the Jersey Village Police Department, who had

participated in the investigation at the murder scene, was present in the courtroom

and had signed a search-warrant affidavit for the cell phone. Lieutenant Hawley also

testified at the hearing. He explained that the police took the cell phone, marked it,

and placed it in the police property room because "it was in the middle of a crime

scene [as] determined by officers when they arrived on-scene.” The State also asked

the district court to "bifurcate the warrant and leave out the keys,” indicating that the

State agreed that the keys should be returned to Gault. The district court rejected the

State's search-warrant application for the cell phone. At the end of the hearing, the

district court stated that it would issue its order regarding the State's motion to

reconsider the next day.

On February 24, 2022, the State filed a brief in support of its motion to

reconsider. The State argued that the order to return Gault's cell phone was void

because, at that stage of the proceedings, the district court had no authority to issue

the order. At a hearing that day, the State told the district court that it had intended

to elicit testimony from Lieutenant Hawley at the earlier hearing to show that the

decedent, Thomas, and Gault had a relationship before Thomas was killed, but the

State asserted that it was prevented from eliciting the testimony because the district

court had "stopped” Lieutenant Hawley's testimony. The State asserted that "[the]

relationship will be highly relevant evidence to a murder prosecution where the

6

defendant is claiming self-defense.” It stated that it was attempting "to get to the

probable cause statement necessary for a search warrant,” but "[the] investigation

ha[d] not been completed yet” because it had only been ten days since the murder.

The State also informed the district court that it did not oppose returning the

keys to Gault, but the court denied the State's request to separate the return of the

keys from the return of the cell phone. The district court instructed the parties to file

what they wanted the court to consider by 5:00 p.m. the next day and to file any

response to the other party's filing by 5:00 p.m. the following day. The court also

informed the parties that it would issue its order regarding the State's motion to

reconsider on March 1, 2022.

Gault filed a motion for a restraining order, requesting the district court to

restrain the State from using or copying his keys or from "viewing, inspecting,

downloading, or copying any of the contents of [his] cell phone.” On February 25,

2022, the district court held a short hearing to address the motion. The court did not

grant the motion, stating that a restraining order was not necessary because the

court's order requiring the return of Gault's property already prevented the State

from engaging in the conduct that Gault sought to restrain. The State reiterated its

willingness to return the keys to Gault but not the cell phone. The district court again

stated that it would not handle the return of the keys and the cell phone separately

for reasons of "judicial economy.” The parties also filed additional briefing.

7

Disposing of the State's motion to reconsider, the district court signed an

"Order to Return Seized Property” on March 1, 2022, ordering the State [to] appear

in the 339th District Court on March 2, 2022 at 10:00 a.m. and return Mr. Gault's

keys and [A]ndroid cell phone that is currently being held by the Jersey Village

Police Department.” The order recited that the court had "reviewed the probable

cause statements, search warrants, testimony, hearings and all of the case law

provided by both parties.” The district court found that the State had "not met its

burden in establishing the probable cause necessary to obtain a search warrant for

the items in question.” The court further found that the State had "failed to establish

a nexus between the items seized and the crime that was committed.” To support the

order, the district court also cited Code of Criminal Procedure article 18.13, which

provides that if "the magistrate” is "not satisfied, upon investigation, that there was

good ground for the issuance of the warrant, he shall discharge the defendant and

order restitution of the property taken from him, except for criminal instruments.”

TEX. CODE CRIM. PROC. art. 18.13.

The district court also conducted a hearing on March 1. At the hearing, the

court explained the content of the March 1 order and provided the parties with a

copy. During the hearing, the State informed the district court that the judge of

another criminal district court—the 209th District Court of Harris County—had

issued a search warrant for Gault's cell phone.

8

As required by the March 1 order, the 339th District Court instructed the

parties to return to court the following morning with Gault's cell phone and keys.

The court also instructed the State to bring the search warrant signed by the judge of

the 209th District Court so that the court could review the search-warrant affidavit

to determine whether it was sufficient to support the warrant.

That same day, the State filed a notice of appeal. In the notice, the State

indicated that it was appealing the February 21 order requiring the police to return

Gault's cell phone and keys and the March 1 order, which implicitly denied the

State's motion to reconsider the February 21 order and required the State to return

the keys and cell phone the next day. The State also filed an emergency motion for

temporary relief asking this Court to stay the district court's orders and "all trial

court proceedings.” On March 2, 2022, we granted the motion, staying the February

21 and March 1 orders and all trial court proceedings pending disposition of the

appeal.

On March 2, 2022, the parties returned to the 339th District Court, and the

State informed the court that it had appealed the orders. Gault renewed his request

for a restraining order to enjoin the State from searching his cell phone pursuant to

the search warrant issued by the 209th District Court. The district court denied

Gault's request for a restraining order. The court stated that a restraining order was

not necessary because the court's "preexisting order” requiring the return of Gault's

9

cell phone "render[ed] any search of the phone invalid” and that, "if there is a

standing Court order in place to return and it's [searched] in violation of the Court

order, then [the court] anticipate[d] there [would] be problems with the admission of

said evidence” obtained by the search warrant. The district court also remarked that

there may be "ramifications” if the police relied on the 209th District Court's search

warrant and searched Gault's phone.

On May 12, 2022, the State also filed a petition for writ of mandamus in this

Court complaining of the February 21 and March 1 orders. In the petition, the State

asserts that, if its interlocutory appeal is dismissed for lack of jurisdiction, then it is

entitled to mandamus relief, requiring the district court to vacate the February 21

and March 1 orders because they are void.

Although we had already issued an order in the interlocutory appeal staying

the two orders and all trial court proceedings, the State also filed a motion for

emergency temporary relief with its mandamus petition. The State asked that we stay

all trial court proceedings to ensure that a stay remained in effect if we ruled against

the State in the appeal. On May 19, 2022, we granted the motion for temporary relief,

staying the February 21 and March 1 orders and all trial court proceedings until we

disposed of the mandamus petition or "until further order of this Court.”

10

Return of Seized Property

In the interlocutory appeal and in the original mandamus proceeding, the State

argues that the February 21 and March 1 orders (the orders), requiring the State to

return Gault's cell phone and keys, are void because the 339th District Court did not

have jurisdiction over the criminal case and the district court judge, acting as

magistrate, lacked authority to issue the orders.

A. Interlocutory Appeal

Gault asserts that this Court lacks jurisdiction over the State's interlocutory

appeal. We agree.

The State is entitled to appeal an order in a criminal case as authorized by law.

TEX. CONST. art. V, § 26. Code of Criminal Procedure article 44.01(a) lists the type

of orders that the State is permitted to appeal. See TEX. CODE CRIM. PROC. art.

44.01(a). However, article 44.01(a) "does not authorize the State to appeal an order

returning seized property.” In re Search Warrant Seizure, 273 S.W.3d 398, 400 (Tex.

App.—San Antonio 2008, pet. ref' d) (dismissing appeal of order that returned

seized property).

In determining our jurisdiction, we find the case of In re Gambling Devices &

Proceeds instructive. 496 S.W.3d 159, 161 (Tex. App.—San Antonio 2016, pet

ref'd). There, the State seized property from the appellees' home pursuant to a search

warrant. Id. The appellees then filed a motion "seeking the return of all personal

11

property taken from their home pursuant to article 18.13 of the Texas Code of

Criminal Procedure.” That article "provides that if the magistrate is not 'satisfied,

upon investigation, that there was good ground for the issuance of the warrant, he

shall discharge the defendant and order restitution of the property taken from him,

except for criminal instruments.'” Id. at 161–62 (quoting TEX. CODE CRIM. PROC.

art. 18.13). Following an evidentiary hearing, the trial court granted the appellees'

motion and ordered law enforcement to return appellees' property to them pursuant

to article 18.13. See id. at 162. The State then appealed the trial court's order, but

the court of appeals held that it did not have jurisdiction to consider the appeal

because article 44.01(a) "[did] not grant the State the right to appeal a trial court's

order [issued] pursuant to article 18.13.” Id. at 163–64.

Here, as its jurisdictional basis, the State points to article 44.01(a)(5), which

permits the State to appeal a trial court's order granting a motion to suppress

evidence. TEX. CODE CRIM. PROC. art. 44.01(a)(5). The State also relies on the

principle that it may appeal an order if the order's effect is the same as an order

expressly listed as appealable in article 44.01(a). See, e.g., Garcia v. State, 638

S.W.3d 679, 685 (Tex. Crim. App. 2022) (holding that, because order granting new

trial is appealable under article 44.01(a), and order granting habeas corpus relief and

vacating appellees' conviction was "the functional equivalent of an order granting a

new trial,” State could appeal order).

12

The State acknowledges that the district court's orders do not expressly grant

a motion to suppress evidence, but it contends that the district court's orders

requiring the return of Gault's property effectively operate as an order granting a

motion to suppress because, if executed, either order "will result in the State's loss

of the cell phone, which will necessarily prevent the State from introducing evidence

from the phone at trial.” The State contends that "[t]his is true even though another

judge has signed a search warrant authorizing a search of the phone.”

As support for its contention, the State points to the remarks by the district

court that its "preexisting order” requiring the return of Gault's cell phone

"render[ed] any search of the phone invalid” and that, "if there is a standing Court

order in place to return and it's [searched] in violation of the Court order, then [the

court] anticipate[d] there [would] be problems with the admission of said evidence”

obtained by the search warrant issued by the other court. The State also points to the

district court's remark that there may be "ramifications” if the police relied on the

search warrant and searched Gault's phone.2

We disagree with the State that the effect of the district court's orders

requiring the State to return Gault's cell phone were effectively the same as granting

a motion to suppress. As one court noted, "Suppression of evidence and return of

2

In an earlier hearing, the district court referred to Gault's motion to return his

property as a motion to suppress, but later, the court clarified that it did not view the

motion as a suppression motion.

13

property are not the same relief.” In re Search Warrant Seizure, 273 S.W.3d at 400

(citing State v. Thirty Thousand Six Hundred Sixty Dollars and no/100, 136 S.W.3d

392, 404 (Tex. App.—Corpus Christi 2004, pet. denied)).

As defined by the Court of Criminal Appeals, "a motion to suppress evidence

is one in which the defendant (or the State) claims that certain evidence should not

be admitted at trial for a constitutional, statutory, evidentiary or procedural reason.”

State v. Medrano, 67 S.W.3d 892, 901 (Tex. Crim. App. 2002). Thus, the relief

provided by an appealable order granting a motion to suppress is the exclusion of

evidence at trial. See id. at 901–02. That is its purpose. See id. In contrast, the relief

provided by the district court's February 21 and March 1 orders, in response to

Gault's motion to return the seized property, was the restoration to him of his keys

and cell phone. The remarks of the district court judge relied on by the State do not

change that. As discussed, the reason for the district court's remarks, indicating that

it anticipated "problems” with the admissibility of the evidence obtained from

Gault's cell phone, was to explain why the court believed a restraining order was

unnecessary to prevent the State from searching the cell phone. The district court

was not making an evidentiary ruling, which at that point would have been

theoretical. Thus, the district court's orders to return Gault's property to him do not

have the same effect as an order granting a motion to suppress.

14

Because article 44.01 does not authorize the State to appeal the orders

requiring the return of the seized property to Gault, we do not have jurisdiction to

consider the interlocutory appeal. TEX. CODE CRIM. PROC. art. 44.01(a).

Accordingly, the appeal is dismissed for lack of jurisdiction. See In re Gambling

Devices, 496 S.W.3d at 163–64; In re Search Warrant Seizure, 273 S.W.3d at 400.

B. Original Mandamus Proceeding

In the original proceeding, the State seeks issuance of a writ of mandamus

directing the district court to vacate its orders requiring the State to return the seized

property. As in the appeal, the State bases its request for relief on its assertion that

the orders are void because the 339th District Court was without jurisdiction over

the criminal case and the district court judge, as magistrate, was without authority to

issue them.

1. Standard of Review

A relator is entitled to mandamus relief against a trial court when (1) the

relator has no other adequate legal remedy and, (2) the act sought to be compelled is

purely ministerial. In re State ex rel. Ogg, 618 S.W.3d 361, 363 (Tex. Crim. App.

2021). Regarding the first prong, here, the State has no adequate remedy because, as

discussed, it has no right to an interlocutory appeal of the orders and because any

later right to complain depends on events that may not occur, such as an appeal from

an order granting a motion to suppress evidence obtained from Gault's cell phone.

15

See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) ("The State has no

adequate remedy because it had no immediate right to appeal the trial court's order

refusing to disqualify counsel and because its only ultimate right to complain would

be a cross-point that depends on the defendant taking an appeal from a conviction.”).

The Court of Criminal Appeals has also "held that an appeal from a void proceeding

does not constitute an adequate remedy at law for purposes of a mandamus

proceeding.” State ex rel. Wice v. Fifth Jud. Dist. Ct. of Appeals, 581 S.W.3d 189,

194 (Tex. Crim. App. 2018). And we have recognized that "mandamus will issue to

vacate a void order even when there is an adequate remedy by appeal.” In re Off. of

Att'y Gen. of Tex., 264 S.W.3d 800, 805 (Tex. App.—Houston [1st Dist.] 2008, orig.

proceeding).

Regarding the second prong, "[a]n act is purely ministerial if the relator has a

clear and indisputable right to the relief sought, i.e., when the facts and

circumstances of the case dictate but one rational decision under unequivocal, wellsettled, and clearly controlling legal principles.” In re Yeager, 601 S.W.3d 356, 358

(Tex. Crim. App. 2020). "This requirement of a ministerial duty is sometimes

discussed in terms of a trial court's authority or jurisdiction.” In re Gambling

Devices, 496 S.W.3d at 164. "If a trial judge lacks authority or jurisdiction to take

particular action, the judge has a 'ministerial' duty to refrain from taking that action,

to reject or overrule requests that he take such action, and to undo the action if he

16

has already taken it.” Id. (quoting 43B Dix & Schmolesky, TEX. PRAC. § 61:29

(2011)). In other words, a trial court has a ministerial duty to vacate a void order.

See State ex rel. Thomas v. Banner, 724 S.W.2d 81, 85 (Tex. Crim. App. 1987) (orig.

proceeding) ("Absent proper jurisdiction, it was the trial court's ministerial duty to

vacate the orders.”).

A trial court's order is void if the record shows the trial court had no

jurisdiction over the parties, no subject-matter jurisdiction, no jurisdiction to enter

the order, or no capacity to act as a court. In re Paxton, Nos. 05-17-00508-CV, 05-

17-00509-CV, ––– S.W.3d ––––, 2017 WL 2334242, at *3 (Tex. App.—Dallas May

30, 2017, orig. proceeding). And, when a judge acts lacks authority to issue an order,

the order is void. See State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 425 (Tex.

Crim. App. 1990) (orig. proceeding) (en banc) (holding that, because district court

judge, sitting as magistrate, "did not have the authority” to issue orders "restraining

State from presenting evidence of the liable offenses before the grand jury,” orders

were void).

In short, "[m]andamus is available when a judge acts outside of his court's

jurisdiction, i.e., when the judicial act is void.” In re Off. of Att'y Gen. of Tex., 264

S.W.3d at 805. And "[i]f a district judge enters an order for which he has no statutory

authority, mandamus will issue.” Salinas, 784 S.W.2d at 423. Thus, here, if the

district court lacked jurisdiction or the district court judge lacked statutory authority

17

to issue the orders requiring the return of the seized property, then the State is entitled

to mandamus relief.

2. Analysis

The Texas Constitution requires that, unless waived by the defendant, the

State must obtain a grand jury indictment in a felony case. Teal v. State, 230 S.W.3d

172, 174 (Tex. Crim. App. 2007) (citing TEX. CONST. art. I, § 10). "The presentment

of a valid indictment vests the district court with jurisdiction of the cause.” Jenkins

v. State, 592 S.W.3d 894, 898 (Tex. Crim. App. 2018) (citing TEX. CONST. art. V §

12(b)); see Teal, 230 S.W.3d at 174–75 ("Absent an indictment or valid waiver, a

district court does not have jurisdiction over that case.”); Garcia v. Dial, 596 S.W.2d

524, 527 (Tex. Crim. App. 1980) (orig. proceeding) ("[I]t is well settled that a valid

indictment, or information if indictment is waived, is essential to the district court's

jurisdiction in a criminal case.”).

"A trial court's jurisdiction over a criminal case consists of the power of the

court over the 'subject matter' of the case, coupled with 'personal' jurisdiction over

the accused.” Jenkins, 592 S.W.3d at 898. "Unlike in civil cases, where personal

jurisdiction over a party may be had merely by that party's appearance before the

court, criminal jurisdiction over a person requires the filing of a valid indictment or

information.” Id. "[S]ubject-matter jurisdiction requires both a general grant of

authority to the trial court and a charging instrument that invokes that jurisdiction

18

over the particular case.” Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App.

2009) (emphasis omitted).

The attachment of jurisdiction "conveys upon that court the power to

determine all essential questions and to do any and all things with reference thereto

authorized by the Constitution and statutes, or permitted district courts under

established principles of law.” Garcia, 596 S.W.2d at 527–28 (internal quotation

marks omitted). "[T]hat jurisdiction embraces everything in the case and every

question arising which can be determined in the case, until it reaches its termination

and the jurisdiction is thereby exhausted.” Id. at 528.

Here, when the 339th District Court signed the orders to return the seized

property, no indictment or information had been presented, and Gault had not waived

indictment. Only a complaint had been filed. Thus, the court lacked jurisdiction over

this case "to determine all essential questions.” See Jenkins, 592 S.W.3d at 898; Teal,

230 S.W.3d at 174–75; Garcia, 596 S.W.2d at 527–28.

District court judges are authorized by Code of Criminal Procedure article

2.09 to sit as magistrates. See TEX. CODE CRIM. PROC. art. 2.09. We have previously

recognized, "It is the custom in Harris County for district judges, before the return

of an indictment, to sit as a magistrate on complaints filed in their court.” McBee v.

State, 981 S.W.2d 694, 697 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) (citing

Salinas, 784 S.W.2d at 424; TEX. CODE CRIM. PROC. art. 2.09).

19

In Salinas, the Court of Criminal Appeals addressed the authority of a

magistrate:

The duties and authority attending to the role of magistrate "within the

meaning of” the Code of Criminal Procedure are clearly set out in Arts.

2.10 and 2.11, V.A.C.C.P. A magistrate is provided the authority to

hold an examining trial by virtue of Art. 16.01, V.A.C.C.P.

784 S.W.2d at 424. The court explained that the traditional and statutory purposes

of an examining trial are to determine whether probable cause exists, to set bail, to

appoint counsel, and to perpetuate the testimony of witnesses. Id.; see TEX. CODE

CRIM. PROC. art. 16.01. The Salinas court recognized that Government Code section

21.001 provides that a court has all the powers necessary for exercise of its

jurisdiction and enforcement of its lawful orders. 784 S.W.2d at 425–26 (citing TEX.

GOV'T CODE § 21.001). But the court explained that "a court of limited jurisdiction,

such as an examining court, is not provided with greater authority than necessary to

fulfill its statutory role.” Id.

Here, the judge of the 339th District Court had no greater authority than

necessary to fulfill her statutory role as magistrate. See id. Because there was no

indictment when the district court judge signed the orders requiring the return of the

seized property, the judge "had only the power to act as a magistrate, the same

authority a justice of the peace has under [article 2.09 of the Code of Criminal

Procedure].” McBee, 981 S.W.2d at 697; see TEX. CODE CRIM. PROC. art. 2.09

(listing, among others, justice of the peace and district court judges as officers that

20

can function as magistrates). That power does not include the authority to order the

return of seized property. See McBee, 981 S.W.2d at 697 (holding that, in case where

no indictment had been returned, district court judge only had authority of a

magistrate; thus, judge had no power to dismiss case with prejudice based on ground

of collateral estoppel and district court's dismissal order was void). Because the

district court did not have jurisdiction over the criminal case and ordering the return

of the seized property was beyond the statutory authority of the district court judge

as magistrate, the orders requiring the return of Gault's seized property are void. See

Salinas, 784 S.W.2d at 525; Banner, 724 S.W.2d at 85.

In his response to the State's mandamus petition, Gault contends that the

339th District Court was authorized to issue the orders. He points to a 2006 Harris

County Direct Filing Order—signed by the former Administrative Judge, Criminal

Division—governing "the filing, assignment, and docketing of felony cases” in

Harris County criminal courts.3 The Direct Filing Order provides that the "district

clerk shall accept and file all felony complaints presented and initiate a case file and

identify each case with a unique file number.” The "cases shall be assigned to one

3 Gault provided the following link to the Harris County Direct Filing Order:

https://www.justex.net/JustexDocuments/0/Criminal%20Direct%20Filing%20Ord

er%202006.pdf. We note that we are permitted to take judicial notice of "a fact that

is not subject to reasonable dispute because it: . . . can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.” TEX.

R. EVID. 201(b)(2); see id. 201(c)(1) (providing court "may take judicial notice on

its own”).

21

of the district courts trying criminal cases” by using an automated, random

assignment system.

Gault relies specifically on the following provision of the order: "Upon the

filing of said complaint, jurisdiction is vested in the district court sitting as a

magistrate to which the case has been pre-assigned.” Gault contends that the 339th

District Court "was vested with jurisdiction under the Harris County Direct Filing

Order once the State filed a complaint against Mr. Gault on February 14, 2022.”

Gault implies that the Direct Filing Order provided the district court with jurisdiction

over the instant criminal case without the presentment or waiver of an indictment.

However, Gault's reading is contrary to the established principle that "[a]bsent an

indictment or valid waiver, a district court does not have jurisdiction over [a] case.”

Teal, 230 S.W.3d at 174–75. In accordance with this principle, we do not read the

Direct Filing Order to give the district court jurisdiction over the criminal case;

rather, we read it to mean that the judge of the district court, to which the complaint

has been assigned, will sit as the magistrate for that case. Our reading is also

consistent with our previous recognition that "[i]t is the custom in Harris County for

district judges, before the return of an indictment, to sit as a magistrate on complaints

filed in their court.” McBee, 981 S.W.2d at 697. And, as discussed, a district court

22

judge, sitting as a magistrate, lacks the authority to issue an order to return seized

property.4 See id.

Gault also contends that, as magistrate, the judge of the 339th District Court

had the authority to order the return of the seized property pursuant to Code of

Criminal Procedure article 18.13—one of the grounds mentioned in the March 1

order. As noted, article 18.13 provides that if "the magistrate” is "not satisfied, upon

investigation, that there was good ground for the issuance of the warrant, he shall

discharge the defendant and order restitution of the property taken from him, except

for criminal instruments.” See TEX. CODE CRIM. PROC. 18.13. Gault argues that,

under this provision, the judge of the 339th District Court had the discretion to

review the search warrant for his cell phone issued by the judge of the 209th District

Court and, after the review, return the phone to him. We disagree.

Chapter 18 of the Code of Criminal Procedure governs search warrants. See

id. arts. 18.01–18.24. In In re Cornyn we determined that "Chapter 18 uses 'the

4 Even if we were to read the Direct Filing Order as Gault advocates, we find no

authority to support any assertion that the administrative judge for the criminal

courts in Harris County had the power to enlarge the jurisdiction of the district courts

by giving them jurisdiction over a criminal case before the filing or waiver of an

indictment. Government Code section 74.092 lists the duties of a local

administrative judge at the county level. See TEX. GOV'T CODE § 74.092. These

duties include the requirement that the local administrative judge "shall . . .

implement and execute the local rules of administration, including the assignment,

docketing, transfer, and hearing of cases,” but the statute provides no authority for

the administrative judge to enlarge the jurisdiction of the courts in the county in

which he or she presides. See id. § 74.092(a)(1).

23

magistrate' to mean the one to whom the search warrant is ordered returned.” 27

S.W.3d 327, 334 (Tex. App.—Houston [1st Dist.] 2000, original proceeding)

(emphasis in original). Here, the search warrant signed by the judge of the 209th

District Court was ordered returned to that court. Thus, as we determined in Cornyn,

the judge of the 339th District Court was not "the magistrate” under article 18.13

who could order restitution of the seized property. That provision provided no

authority to the 339th District Court to order restoration of Gault's property to him.

Moreover, as the State points out, Gault's cell phone was not seized from him

pursuant to the search warrant, rather it was seized by the police when he was

arrested at the murder scene.

Gault further argues that, even if article 18.13 does not support the district

court's orders, we should nonetheless deny the State's request for mandamus relief

based on the equitable doctrine of unclean hands. Gault does "not dispute Cornyn's

holding that Chapter 18 uses 'the magistrate' to mean the one to whom the search

warrant is ordered returned,” but he asserts that "the State's petition should be denied

because [it] acted with 'unclean hands' by manipulating procedures in bad-faith” to

the deprive the 339th District Court judge, as magistrate, authority over his motion

to return the seized property. Gault contends that "the State got a search warrant

from a different magistrate so that under Cornyn, [the judge of the 339th District

Court] effectively had no authority under Chapter Eighteen.” He asserts that, "[e]ven

24

if [this] Court does not agree that [the judge of the 339th District Court] had

jurisdiction and authority to order the return of Mr. Gault's property, the Court

should reject the State's argument and deny its petition for want of good faith” based

on the doctrine of unclean hands.

Because the orders restoring the seized property are void due to the district

court's lack of jurisdiction and authority, the equitable doctrine of unclean hands

cannot apply. See In re Valliance Bank, 422 S.W.3d 722, 728 (Tex. App.—Fort

Worth 2012, orig. proceeding) (holding that equitable doctrines "such as laches,

waiver, or estoppel are not applicable when the order that is the subject of the

mandamus proceeding is void”). An equitable remedy, such as unclean hands,

cannot confer jurisdiction when jurisdiction is lacking. See Davis v. Dallas Cnty.

Sch., 259 S.W.3d 280, 286 (Tex. App.—Dallas 2008, no pet.) (holding that subjectmatter jurisdiction cannot be conferred by equitable doctrines of waiver or estoppel)

(citing, inter alia, Wilmer–Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293,

294–95 (Tex. 2001) (per curiam) ("A party cannot by his own conduct confer

jurisdiction on a court where none exists. Even if the District misled Sullivan as she

claims, her failure to exhaust her administrative remedies is fatal to her action.”)).

Finally, Gault contends that the State is not entitled to mandamus relief

because it "flouts controlling precedent by using its petition as a substitute for

appeal.” Gault cites the following principle: "The effect of an appeal is to suspend

25

and arrest all further proceedings in a case in the trial court, until the judgment of

the appellate court is received by the trial court.” Ray v. State, 227 S.W.2d 216, 218

(Tex. Crim. App. 1950). Gault then points out that, in its mandamus petition, the

State requested a stay of the trial court proceedings "in the event that this Court

denies the State's appeal prior to ruling on this writ of mandamus.” Gault asserts that

"the State is using its petition as a proxy for the powers of appeal by effectively

requesting this Court to 'suspend and arrest all further proceedings . . . until the

judgment of [this Court] is received'” by the district court. Gault then asserts, "Such

relief is strictly reserved for appellate courts, yet the State uses its petition to compel

actions that can only be granted but upon appeal.” However, Gault is incorrect in his

assertion. Rule of Appellate Procedure 52.10 permits a relator, such as the State, to

"file a motion to stay any underlying proceedings or for any other temporary relief

pending the court's action on the petition” in an original proceeding. TEX. R. APP. P.

52.10(a). The rule also provides that this Court may "grant any just relief pending

the court's action on the petition.” Id. 52.10(b).

As discussed, the State filed a motion for temporary relief in the interlocutory

appeal, asking us to stay the February 21 and March 1 orders and all trial court

proceedings, which we granted. See id. 29.3 ("When an appeal from an interlocutory

order is perfected, the appellate court may make any temporary orders necessary to

preserve the parties' rights until disposition of the appeal . . . .”). While the State

26

requested in its mandamus petition the temporary relief cited by Gault, the State also

filed, along with its petition, a motion for temporary relief as allowed by Rule 52.10,

asking us to stay the February 21 and March 1 orders and all trial court proceedings.

We granted that motion as well, staying the orders and all trial court proceedings as

permitted by Rule 52.10. Thus, Gault's assertion that we should deny mandamus

relief because the State has "flout[ed] controlling precedent by using its petition as

a substitute for appeal” is without merit.

In sum, we conclude that the 339th District Court's orders, requiring the State

to return Gault's property, are void because the district court lacked jurisdiction over

the criminal case and the district court judge, sitting as magistrate, lacked authority

to sign the orders. Thus, we hold that the State is entitled to the mandamus relief that

it seeks.