IN THE

COURT OF APPEALS

FOR THE FIFTH DISTRICT OF TEXAS

AT DALLAS

KEILON MARCEL WRIGHT

APPELLANT

V.

THE STATE OF TEXAS

APPELLEE

CAUSE NUMBER: 05-19-00113-CR

ON APPEAL FROM CAUSE NUMBER: F17-55631

203RD DISTRICT COURT

OF DALLAS COUNTY, TEXAS

APPELLANT’S BRIEF

Allan Fishburn

State Bar Number 07049110

1910 Pacific Avenue

Suite 18800

Dallas, Texas 75201

(214) 761-9170

allanfishburn@yahoo.com ACCEPTED

05-19-00113-CR

FIFTH COURT OF APPEALS

DALLAS, TEXAS

5/2/2019 6:39 PM

LISA MATZ

CLERKIDENTITY OF THE COURT, PARTIES AND COUNSEL

THE COURT

Honorable Teresa Hawthorne

203rd District Court

Dallas County, Texas

PARTIES

KEILON MARCEL WRIGHT Appellant

THE STATE OF TEXAS State

COUNSEL

Mr. Robert ‘Robbie’ Crabtree

Assistant District Attorney Attorney for the State

133 N. Riverfront Boulevard

Dallas, Texas 75207

Mr. John Daniel Oliphant

3626 N. Hall Street Attorney for the Defendant

Suite 622

Dallas, Texas 75219

Mr. Allan Fishburn

1910 Pacific Avenue Attorney for Appellant

Suite 18800

Dallas, Texas 75201

2TABLE OF CONTENTS

IDENTITY OF THE PARTIES 2

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 5

ISSUES PRESENTED 6

STATEMENT OF FACTS 7

POINT OF ERROR NUMBER ONE

THE TRIAL COURT LACKED JURISDICTION

TO HEAR THE INSTANT CASE AND RENDER

A JUDGMENT THE CASE WAS NOT PROPERLY

TRANSFERREDTO ITS DOCKET 12

SUMMARY OF ARGUMENT 13

ARGUMENT 13

PRAYER 15

CERTIFICATE OF COMPLIANCE 16

CERTIFICATE OF SERVICE 16

3INDEX OF AUTHORITIES

CASES

Ex parte Seidel

, 39 S.W. 3rd 221

(Tex. Crim. App. 2001) 14

Garcia v. State

, 901 S.W. 2d 731

(Tex. App. Houston [14th Dist.] 1995) 15

Heath v. State

, 817 S.W. 2d 335

(Tex. Crim. App. 1991) 14

Hoang v. State

, 872 S.W. 2d 694

(Tex. Crim. App. 1993) 14

Marin v. State

, 851 S.W. 2d 275

(Tex. Crim. App. 1993) 14

Mills v. State

, 742 S.W. 2d 832

(Tex. App.

– Dallas 1987) 15

STATUTES

Tex. Code Crim. Proc. Ann. article 4.16 13, 14

Tex. Code Crim. Proc. Ann. article 12.06 13

Tex. Code Crim. Proc. Ann. article 32.01 13

Tex. Govt. Code Ann. section 24.003 14

CONSTITUTIONS

Tex. Const. Art. V. section 12 (b) 13

4STATEMENT OF THE CASE

Appellant was charged with aggravated robbery by an indictment which reads: In

the name and by the authority of the State of Texas: The Grand Jury of Dallas

County, State of Texas, duly organized at the July term, A.D., 2017 of the 291st

Judicial District court for said County, upon its oath do present in and to said Court

at said term that Keilon Marcel Wright, hereinafter called Defendant, on or about

the 13th day of June, 2017 in the County of Dallas, State of Texas, id then and there

intentionally and knowingly, while in the course of committing theft of property

and with intent to obtain or maintain of said property, threaten and place Pamela

Murph in fear of imminent bodily injury and death, and the defendant used and

exhibited a deadly weapon to-wit: A handgun. (C.R. P. 9)

Appellant pled guilty without the benefit of a plea bargain. (R.R. Vol. 1, p. 6-9)

The Trial Court set sentence at 30 years confinement. (R.R. Vol. 1, p. 66)

5ISSUES PRESENTED

1. The Trial Court lacked jurisdiction to hear the instant case and render a

judgment because the case was not properly transferred to its docket.

6STATEMENT OF FACTS

Appellant was charged with aggravated robbery by an indictment which reads:

In the name and by the authority of the State of Texas: The

Grand Jury of Dallas County, State of Texas, duly organized at

the July term, A.D. 2017 of the 291st Judicial District Court for

said County, upon its oath do present in and to said Court at

said term.

That Keilon Marcel Wright, hereinafter called Defendant, on or

about the 13th day of June, 2017, in the County of Dallas, State

of Texas, did then and there intentionally and knowingly, while

in the course of committing theft of property and with intent to

obtain or maintain control of said property, threaten and place

Pamela Murph in fear of imminent bodily injury and death,

and the defendant used and exhibited a deadly weapon, to-wit:

A handgun.

(C.R. p. 9)

The indictment was returned to the 291st District Court. (C.R. p. 8)

The case later appeared on the docket of the 195th District Court. (C.R. p.8)

Next the case was purportedly transferred to the 203rd District Court. (C.R. p. 17)

Appellant pled guilty without the benefit of a plea bargain. (R.R. Vol. 1, p. 6-9)

7Officer Green was asked what his “role” was in the case. He answered:

My role was responding to Officer Ulas call for cover, and I

observed a black Toyota Corolla that was taken in a carjacking.

I covered that officer. I was the number two car in the chase

and also...

(R.R. Vol. 1, p. 11)

Officer Green described the chase. (R.R. Vol. 1, p 12)

After the car came to a stop “three of the four passengers of the vehicle fled on foot

in another attempt to escape detention or arrest.” (R.R. Vol. 1, p. 12)

The driver was caught hiding on a first floor balcony. (R.R. Vol. 1, p. 12)

Appellant was the driver. (R.R. Vol. 1, p. 12)

Officer Green described the situation as “very dangerous” because of aggravated

robbery and fleeing in the car taken in one of the robberies was involved.” (R.R.

Vol. 1, p. 13)

Appellant “was already on probation for an aggravated robbery, out of the juvenile

8department in Dallas.” (R.R. Vol. 1, p. 15)

Appellant had another robbery in 2013. (R.R. Vol. 1, p. 15)

Appellant committed a robbery every year beginning in 2013. (R.R. Vol. 1, p. 15)

One of the present robberies was a “home invasion.” (R.R. Vol. 1, p. 16)

One of the present robberies was a “carjacking.” (R.R. Vol. 1, p. 16)

State’s exhibit 2, a video of the chase involving the car taken in one of the present

robberies, was admitted without objection and published. (R.R. Vol. 1, p. 16-17)

Appellant denied any participation in the offenses when he was interrogated by the

lead detective. (R.R. Vol. 1, p. 21)

One of the other suspects told police that Appellant “had the gun, and when the

police were following them, gave it to one of them and told them to hide it under

the seat so he wouldn’t get caught with it.” (R.R. Vol. 1, p. 22)

9On cross-examination Officer Green acknowledged that Appellant was 17 years old

at the time of the event. (R.R. Vol. l, p. 25)

The victims of the home invasions robbery identified Appellant as being the

gunman. (R.R. Vol. 1, p. 31)

The State rested. (R.R. Vol. 1, p. 33)

Appellant described his part in the event as follows:

Like before all this even happened, like, I was in the car with

my uncle and he supposed to take me home. The we had went

to the store, then we had seen Darren Green and Datarian

Hendrix walking to the store and they got in the car with my

uncle and us and they

... they told us take them to hit a lick.

And then I was

...

So when they

... then I was, like, take me home before you

going to do that. And they was like, stop being scared. Just

come on, man, and do it with us. Then they went to North

Dallas and they had seen two

... well, we seen two people

going upstairs, you know, and they had put the gun out with

them. And then I ran up there with them and they took their

phones and laptop.

(R.R. Vol. 1, p. 34-35)

Appellant continued:

10Like, my uncle first, like they, he drove to some apartments

they seen and there was, like, those two people right there and I

didn’t want to do it but I did it with them, I ain’t going to lie.

So I jumped out with them. Darren Green put the gun

... point

the gun at them and took their phone and laptop. And then

when we got back in the car, they were like, let’s do another

one, let’s do another one. I said, nah, you all doing too much.

Take me home. You

- all tripping. And then we seen, like two

females that was sitting in the car, they like, let’s go get them,

let’s go get them. I was, like, man. So I did it with them. I

was scared. So I got out and jumped out with them.

(R.R. Vol. 1, p. 35-36)

Appellant explained why he was driving the stolen car:

First, I was in the passenger’s seat and Darren Green was

driving and Hendrix was in the back. We coming down like

... like they on the freeway, they coming, like, towards First and

Rogue, that’s where my momma live. And that’s

... he was

driving like, all crazy. I was like, let me drive before you

wreck. Let me drive to my momma’s house. Let me get home

first before you all do anything else. So he pulled over, I got in

the driver’s seat, I started driving. I’m driving normal, trying

to get home, like and I want to get no stolen car. Then I seen

the police get behind the car. I was about to pull over... at first

when I was about to pull over... at first, they was like, hit the

gas, hit the gas, hit the gas. You trippin. Keep going. Keep

going. Me, I was about to stop. Then they was like, hit the

gas. And we went into a high speed chase, that’s when it

happened. Then when I jumped out, I tried to run to my

momma’s house but I couldn’t make it. I tried to tell my

momma.

(R.R. Vol. 1, p. 38)

11Appellant was on juvenile probation for robbery at the time of the event. (R.R. Vol.

1, p. 39)

Appellant only participated in the crimes because he needed a ride home. (R.R.

Vol. 1, p. 40)

Appellant denied having a gun. (R.R. Vol. 1, p. 41)

Appellant rested and both sides closed. (R.R. Vol. 1, p. 61)

The Trial Court set sentence at 30 years confinement. (R.R. Vol. 1, p. 66)

POINT OF ERROR NUMBER ONE

THE TRIAL COURT LACKED JURISDICTION TO HEAR THE

INSTANT CASE AND RENDER A JUDGMENT BECAUSE THE

CASE WAS NOT TRANSFERRED TO ITS DOCKET

12SUMMARY OF ARGUMENT

The 203rd District Court had no jurisdiction over this case. Its judgment is void.

ARGUMENT

The Texas Constitution provides that a court is vested with jurisdiction over a

criminal case by the presentment of an indictment or information. Tex. Const. Art.

V. section 12 (b)

. An indictment is presented when it has been duly acted on by the

grand jury and received by the Trial Court. Tex. Code Crim. Proc. Ann. Article

12.06

. Statutory provisions also codify the necessary result, implied by article V

section 12 above that the Trial Court lacks jurisdiction in the absence of proper

presentment. Tex. Code Crim. Proc. Ann. Article 32.01 (requiring an indictment to

be dismissed if not presented to the Trial Court by date certain). Once the

indictment is presented jurisdiction is exclusive in the receiving Court unless it is

transferred to another Court. Tex. Code Crim. Proc. Ann. Article 4.16

.

The only mechanism for transferring the power to try a felony is by an order of

transfer combined with an order of receiving. Combined, these constitute a written

agreement between the two courts involved. The transferring Court issues an order

13formally transferring jurisdiction over the case. The second Court accepts the case

by issuing a formal order receiving. See

, Tex. Govt. Code Ann. Section 24.003

.

The instant case was presented to 291st District Court of Dallas County, Texas.

Jurisdiction was thus invested in that Court. The instant case later appeared on the

docket of the 195th District Court and then it was purportedly transferred to the

203rd District Court where it remained through judgment. However, there is

nothing in the record showing that jurisdiction was ever transferred by the 291st

District Court to the 195th District Court. Therefore it appears that the 291st

District Court “retains” jurisdiction, just as article 4.16 states. Appellant contends

that the 203rd District Court never acquired jurisdiction in this matter.

Lack of jurisdiction over a case renders a Trial Court’s judgment void. Ex

parte Seidel

, 39 S.W. 3rd 221 (Tex. Crim. App. 2001); Hoang v. State

, 872 S.W. 2d

694 (Tex. Crim. App. 1993). A defect which renders a sentence void may be raised

for the first time of appeal. Heath v. State

, 817 S.W. 2d 335 (Tex. Crim. App.

1991).

The right to be tried in a court that has properly acquired jurisdiction over a

case is absolute. See

, Marin v. State

, 851 S.W. 2d 275 (Tex. Crim. App. 1993).

Such a right to cannot be waived or forfeited, even with consent. Id

.

Implementation is not optional, it is always required. Id. at 279. Error in this

14regard is not subject to further analysis. Thus, a defendant may complain about this

violation of an absolute right on appeal without having raised the question in the

Trial Court. Id

. at 280.

Appellant now complains that the 203rd District Court never acquired

jurisdiction over the instant case, but he acknowledges that authority is against his

position. See

, e.g.

, Mills v. State

, 742 S.W. 2d 832, 835 (Tex. App.

– Dallas 1987);

Garcia v. State

, 901 S.W. 2d 731,732-733 (Tex. App.

- Houston [14th. Dist.]1995).

These cases all hold that the present issue must be raised the trial counsel or it is

waived. However, they simply cite to their antecedents without any Constitutional

or statutory authority for the proposition that a jurisdictional defect can be cured by

procedural default.

PRAYER

WHEREFORE Premises Considered, Appellant prays that this Honorable Court

reverse and remand this cause to the Trial Court for further proceedings

Respectfully submitted:

/s/ Allan Fishburn

Allan Fishburn

State Bar Number: 07049110

1910 Pacific Avenue

Suite 18800

Dallas, Texas 75201

15Telephone (214) 761-9170

allanfishburn@yahoo.com

CERTIFICATE OF COMPLIANCE

I hereby certify the foregoing document contains 2, 374words.

/s/ Allan Fishburn

Allan Fishburn

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief was e-served to

dcdaappeals@dallascounty.org on this the 2nd day of May, 2019.

/s/ Allan Fishburn

Allan Fishburn

16