Opinion
NO. 03-17-00456-CR
04-24-2018
Melissa Diaz, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 75621 , HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING MEMORANDUM OPINION
Melissa Diaz appeals her judgment of conviction on her open plea of guilty to possession with intent to deliver a controlled substance (methamphetamine) 400 grams or more, a first-degree felony, for which she was sentenced to 40 years' imprisonment. See Tex. Health & Safety Code § 481.112. In two issues, Diaz contends that: (1) the 264th District Court of Bell County lacked jurisdiction to transfer her case from the 27th District Court of Bell County and such illegal transfer rendered Diaz's conviction void, and (2) alternatively, the 264th District Court violated the separation of powers provision in the Texas Constitution by delegating authority to the district attorney's office to determine which court hears a particular case. We will affirm the judgment of conviction.
BACKGROUND
The record reflects that Diaz was indicted by a grand jury of the 426th District Court in Bell County for the first-degree felony offense of possession with intent to deliver a controlled substance (methamphetamine) 400 grams or more. The affidavit for arrest states that Diaz and her co-defendant Jesus Calderon were identified by another defendant, Dimitri Dears, as his suppliers of methamphetamine. The affidavit also states that Diaz was detained by police when she arrived at Dears's residence in response to his telephone order for methamphetamine. The affidavit further states that Diaz provided a recorded interview in which she waived her rights, admitted her involvement in trafficking large amounts of methamphetamine, and admitted to previous instances of trafficking in large amounts of methamphetamine.
Four days after Diaz's indictment, a staff member of the Bell County District Attorney's Office sent an e-mail to the court coordinators for the 264th District Court and the 27th District Court stating, "Ladies, Please change 16-0565 (Jesus Calderon) and 16-0566 (Melissa Diaz) to be moved from the 27th into the 264th to be with codef[endant], assigned to Mike W. Thank you." Subsequently, Diaz's retained attorney entered an appearance and filed an application for bail reduction in the 264th District Court. No objection was raised to Diaz's case proceeding in that court. After a conflict arose between Diaz and her retained attorney about how to proceed with the case, her retained attorney withdrew, and an attorney was appointed for Diaz.
Four months after her indictment, Diaz filed an "Objection to Transfer," contending that her case should be moved to the 27th District Court because there was no written order transferring the case from that court to the 264th District Court. In her view, the transfer was not authorized by the local rules for the Bell County District Courts and was a violation of due process. The local rule Diaz referenced states that the transfer of cases between the district courts of Bell County may be accomplished by written order with consent of the judges of the courts participating in the transfer. Diaz further contended that allowing the district attorney to select the court in which a case is to be tried was a violation of due process and of the separation-of-powers doctrine of the federal and state constitutions.
At the hearing on Diaz's Objection to Transfer, the judge of the 264th District Court shared her recollection of administrative discussions among the judges about keeping related cases before the same judge and having the district attorney's office screen for cases that might be related:
This Court has been here a long time and when we got the fifth court . . . and before the new judge for the fifth court was appointed or came in, we had—we being, Judge Morris, Judge Adams, Judge Carroll, Judge Trudo, myself, the four judges, a big discussion along with the district attorney to try to figure out . . . how our cases are to be divided with the new fifth court . . . trying to keep some sort of continuity with people who typically that we have dealt with in the past so that the problems that we would have with one defendant with multiple cases ending up in different courts[,] to avoid those kinds [of problems]. . . . We had a lot of administrative discussions multiple times before the fifth court came up into being and how it was to be handled coming along with discussions about the wheel and percentages and family law, all of this.
. . . .
We thought it would be a lot better to have one judge hearing cases that may be related, doesn't matter who it is, it's just that we did that and we made those decisions. . . . I think that that may be memorialized in some sort of a plan letter[] so that all of us were aware, so that when we get something that says oh, wait, this defendant has been in a different court rather—we might—I might talk to the other judge and say, hey, you handled this, let me send it over there, if I know about it.
Realistically that we are so overwhelmed with cases, only the DAs office is going to know who's tagged if you will, like a Facebook, who's tagged with being involved in certain cases. We don't know when they come in here, so the DA is the one who screens[.]In response, Diaz's counsel contended that "this is an unconstitutional procedure" and that "this case is still rightfully in the 27th District Court where it was originally assigned." He further disputed the court's recollection, stating that he did not believe there had been any kind of agreement among the judges allowing the district attorney to decide whether cases were related and thus, control which court received the cases. After taking the matter under advisement, the court overruled Diaz's Objection to Transfer.
The record does not contain the plan letter that the court referenced.
When Diaz's case was set for trial, almost four months after her Objection to Transfer was overruled, she filed a Motion to Transfer with 169th District Court, in its capacity as the Administrative District Court of Bell County. Diaz's Motion to Transfer reiterated her arguments from her Objection to Transfer and her specific complaint that there was no written transfer order. Diaz's motion further contended that her case was "transferred illegally," that "no [i]nterlocutory appeal [was] permissible," and that "appeal of this issue after trial would not provide a remedy."
Diaz did not file a petition for writ of mandamus.
The State filed a response to the Motion to Transfer, noting that the criminal case against Dimitri Dears, which was filed before Diaz's case, was assigned to the 264th District Court, which had handled his two prior felony offenses. The district attorney's office had requested that Diaz's case be moved from the 27th District Court to the 264th District Court, where Dears's case was already pending. The State explained that such request followed the common practice in Bell County of "placing all co-defendant cases and related cases with the same Court." The State also noted that the discovery as to Diaz, Calderon, and Dears was exactly the same, that "all three cases [were] intricately related sharing the same witnesses, police officers, lab personnel, evidence, and recordings," and that the cases were part of the same criminal transaction of conspiracy to possess with intent to deliver methamphetamine. No ruling on Diaz's Motion to Transfer appears in the record.
Ultimately, Diaz pled guilty as charged in her indictment and without a plea agreement. At the plea hearing, Diaz's appointed counsel stated that the plea was made subject to Diaz's continuing objection to the 264th District Court hearing Diaz's case. This appeal followed.
DISCUSSION
In her first issue, Diaz contends that the 264th District Court of Bell County illegally transferred her case from the 27th District Court of Bell County and that such illegal transfer rendered Diaz's conviction void because the 264th District Court "had no capacity to act as a court regarding her case."
Standard of review
Because Diaz's challenge to the 264th District Court's jurisdiction presents a question of law that does not depend on an evaluation of the credibility and demeanor of a witness, we review this question de novo. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (concluding that legal questions that do not turn on evaluation of credibility and demeanor of witness are reviewed de novo); State v. Lee, 437 S.W.3d 910, 911 (Tex. App.—El Paso 2014, pet. ref'd) (reviewing de novo trial court's ruling that it lacked jurisdiction); Moss v. State, 13 S.W.3d 877, 883 (Tex. App.—Fort Worth 2000, pet. ref'd) (reviewing de novo trial court's ruling that it had jurisdiction).
Transfer of Diaz's case was not illegal and Diaz's judgment of conviction was not void
The indictment against Diaz was filed in the 27th District Court of Bell County, but her case was tried in the 264th District Court of Bell County. Relying on article 4.16 of the Texas Code of Criminal Procedure and Bell County Local Rule 3.2, Diaz contends that the 264th District Court's transfer of her case was illegal and that her judgment of conviction was void because the 264th District Court had no capacity to act as a court in her case.
It is undisputed that criminal district courts have original jurisdiction in felony criminal cases. Tex. Code Crim. Proc. art. 4.05. It is also undisputed that 27th District Court and 264th District Court of Bell County have concurrent jurisdiction. Tex. Gov't Code § 24.129(b) ("The 27th, 146th, 169th, 264th, and 426th judicial districts have concurrent jurisdiction in Bell County."). Article 4.16 of the Code of Criminal Procedure provides, with an exception for misdemeanor cases inapplicable here, "When two or more courts have concurrent jurisdiction of any criminal offense, the court in which the indictment or a complaint shall first be filed shall retain jurisdiction[.]" Tex. Code Crim. Proc. art. 4.16.
However, the purpose of article 4.16 is to prevent confusion or contention between courts having concurrent jurisdiction and seeking to exercise jurisdiction, and "not to shield an accused from prosecution." Flores v. State, 487 S.W.2d 122, 125 (Tex. Crim. App. 1972); Garcia v. State, 901 S.W.2d 731, 732 (Tex. App.—Houston [14th Dist.] 1995, pet. ref'd); Mills v. State, 742 S.W.2d 831, 835 (Tex. App.—Dallas 1987, no pet.); see Blades v. State, No. 03-14-00634-CR, 2015 Tex. App. LEXIS 8400, at *6 (Tex. App.—Austin Aug. 12, 2015, no pet.) (mem. op., not designated for publication); Reese v. State, Nos. 05-14-00836-38-CR, 2015 Tex. App. LEXIS 6225, at *2 (Tex. App.—Dallas June 18, 2015, no pet.) (mem. op., not designated for publication). Absence of a transfer order from the record is an error of procedure, not a jurisdictional question. Lemasurier v. State, 91 S.W.3d 897, 899 (Tex. App.—Fort Worth 2002, pet. ref'd); see Blades, 2015 Tex. App. LEXIS 8400, at *6; Reese, 2015 Tex. App. LEXIS 6225, at *2. Thus, article 4.16 will not render the proceedings in the second court void, as Diaz mistakenly contends. See Garcia, 901 S.W.2d at 732-33; Mills, 742 S.W.2d at 835; see also Blades, 2015 Tex. App. LEXIS 8400, at *6; Reese, 2015 Tex. App. LEXIS 6225, at *2.
Diaz acknowledges that the Texas Constitution allows district judges to "exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law." Tex. Const. art. V, § 11. She also acknowledges that under the Texas Government Code, unless provided otherwise by local rules, a district judge in a county with two or more district courts may: (1) transfer any civil or criminal case or proceeding on the court's docket, other than a case governed by Chapter 155, Family Code, to the docket of another district court in the county; (2) hear and determine any case or proceeding pending in another district court in the county without having the case transferred; (3) sit for another district court in the county and hear and determine any case or proceeding pending in that court; (4) temporarily exchange benches with the judge of another district court in the county; (5) try different cases in the same court at the same time; and (6) occupy the judge's own courtroom or the courtroom of another district court in the county, Tex. Gov't Code § 24.003(a), (b), provided that a district judge may not transfer a criminal case to the docket of another district court without the consent of the judge of the court to which it is transferred, id. § 24.003(b-1).
However, Diaz emphasizes that this statute addressing the district courts' transfer of cases and exchange of benches applies "unless provided otherwise by local rules," id . § 24.003(b), and that the local rules of Bell County, in her view, require a written order to transfer a case. Bell County Local Rule 3.2 provides:
The transfer of cases between district courts of Bell County may be done by written order upon consent of the judges of those courts participating in the transfer.Bell County (Tex.) Dist. Ct. Loc. R. 3.2 (emphasis added). The use of "may" in a local rule makes it permissive. See, e.g., Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 656 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (concluding that Harris County local rule providing that documents "may" be filed electronically made e-filing permissive, not mandatory); Campbell v. Stucki, 220 S.W.3d 562, 568-69 (Tex. App.—Tyler 2007, no pet.) (concluding that Smith County local rule for family law cases providing that court "may" set hearing on objection to proposed order meant that setting such hearing was not required); see also Aerobic Maint. & Serv. v. First United Bank & Trust Co., No. 02-08-00232-CV, 2009 Tex. App. LEXIS 3585, at *7 (Tex. App.—Fort Worth May 21, 2009, no pet.) (mem. op.) (concluding that Denton County local rule providing that parties "may" submit matters for ruling without personal appearance and oral presentation "is a permissive rule"); accord Tex. Gov't Code § 311.016(1) (providing that use of "may" in statute "creates discretionary authority or grants permission or a power"), (2) (providing that use of "shall" in statute "imposes a duty"). Here, the plain language of Bell County Local Rule 3.2 shows that it is not a mandatory procedure for transfer of cases between the Bell County district courts. Accordingly, Diaz's contention that the transfer of her case was "illegal" because it violated Bell County Local Rule 3.2—a permissive local rule—is not persuasive.
Diaz failed to show that her judgment of conviction is void or that the transfer of her case to the 264th District Court of Bell County was illegal. We overrule her first issue.
No unconstitutional delegation of judicial authority
In her second issue, Diaz contends that the 264th District Court violated the separation-of-powers provision in the Texas Constitution by delegating authority to the district attorney's office to determine which court hears a particular case.
The Texas Constitution provides that the powers of state government are divided into three distinct departments—legislative, executive, and judicial—and prohibits the exercise of any power properly attached to one department from being exercised by the others, except as expressly provided by the Constitution. Tex. Const. art. II, § 1. The Texas Court of Criminal Appeals has long construed "judicial power" under the Texas Constitution as embracing: (1) the power to hear facts; (2) the power to decide the issues of fact made by the pleadings; (3) the power to decide the questions of law involved; (4) the power to enter a judgment on the facts found in accordance with the law as determined by the court; and (5) the power to execute the judgment or sentence. Staley v. State, 420 S.W.3d 785, 796 (Tex. Crim. App. 2013) (internal citations omitted). There is no contention in this appeal that the 264th District Court delegated to the district attorney's office any "judicial power" to hear facts, decide issues of fact, decide questions of law, enter judgment, or execute judgment. See id. Rather, the record reflects that the discussions about having the district attorney's office screen for related cases took place during what were considered "administrative" discussions. Cf. State v. Williams, 938 S.W.2d 456, 459 (Tex. Crim. App. 1997) (concluding that priority of litigants on court's docket was merely administrative matter and indicating that regulation of trial court's docket is not "a substantive judicial power").
Diaz's separation-of-powers issue hinges on a case addressing a trial court's inherent authority to enforce its orders through the imposition of sanctions, which notes that docket management is one of a court's core functions. See In re K.A.R., 171 S.W.3d 705, 715, 716 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (concluding that trial court properly exercised its inherent power to sanction party and his attorney who unilaterally cancelled and failed to attend court-ordered mediation, thereby interfering with court's exercise of its core functions of managing its docket and enforcing its orders). That case says nothing about the Texas Constitution's separation-of-powers provision and presents no issue of unconstitutional delegation of judicial power.
Similarly distinguishable are the two cases that Diaz cites in her analysis of this issue, Tabor v. Hogan, 955 S.W.2d 894 (Tex. App.—Amarillo 1997, no pet.) and Lewis v. Texas Department of Public Safety, 407 S.W.2d 855 (Tex. Civ. App.—Waco 1966, no writ). In Tabor, the court of appeals held that the trial court improperly delegated to an unnamed "public road official" the judicial power to declare the factual location of a road. 955 S.W.2d at 897. In Lewis, the court of civil appeals held that the trial court improperly delegated to DPS the authorization to suspend Lewis's driver's license (instead of the trial court rendering a judgment suspending the license and having DPS comply with the court's order). 407 S.W.2d at 856. Here, the district attorney's office was not delegated any judicial power to decide a factual dispute, such as determining where a public road was located. See Tabor, 955 S.W.2d at 897. Nor was the district attorney's office delegated any judicial power to issue a judgment in a case, such as an authorization to suspend a driver's license that the trial court had not suspended in its judgment. See Lewis, 407 S.W.2d at 856.
By contrast, other decisions have referenced the fact that certain trial-court cases were transferred at the district attorney's request. See Ex parte Empey, 757 S.W.2d 771, 772 (Tex. Crim. App. 1988) (noting that case was transferred to Criminal District Court No. 3 from Criminal District Court No. 1 "on motion of the district attorney"); Majors v. State, 273 S.W. 267, 269 (Tex. Crim. App. 1925) (noting that courts of county had authorized clerk, with district attorney's direction, to handle transfer of criminal cases).
Diaz's briefing of this issue identifies no "judicial power," as encompassed by the Texas Constitution, that was delegated by the 264th District Court to the district attorney's office. See Tex. R. App. P. 38.1(i) (requiring briefs to contain clear and concise argument for contentions made, along with appropriate citations to authorities and record). Moreover, the record shows no such delegation of judicial power by the 264th District Court to the district attorney's office. We overrule Diaz's second issue.
CONCLUSION
We affirm the district court's judgment of conviction.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Affirmed Filed: April 24, 2018 Do Not Publish