Affirmed and Opinion filed August 1, 2017.




                                       In The

                     Fourteenth Court of Appeals

                                NO. 14-16-00913-CR

                    JEREMIAH M. MATTHEWS, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 182nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1466348

                                  OPINION


      Appellant Jeremiah M. Matthews appeals his conviction for attempted capital
murder. In a single issue appellant argues the trial court lacked jurisdiction because
the grand jury that indicted him sat in a different Harris County District Court than
the one in which his case was heard. We conclude that the indictment vested
jurisdiction in the trial court, and appellant did not preserve for review any
procedural defect. We affirm.
                   I. FACTUAL AND PROCEDURAL BACKGROUND

      The State filed a complaint alleging that appellant committed attempted
capital murder. The complaint was assigned to the 182nd District Court in Harris
County.

      An indictment was later filed in the 182nd District Court, and signed by the
grand jury foreman of the 179th District Court. The trial court proceedings were
conducted in the 182nd District Court. After appellant pleaded “guilty” to attempted
capital murder, the trial court ordered a presentence investigation report and
reconvened for the punishment phase. Following the punishment hearing, the trial
court assessed punishment at confinement for 45 years in the Institutional Division
of the Texas Department of Criminal Justice.

                               II. ISSUE AND ANALYSIS

      Appellant argues that the trial court—the 182nd District Court of Harris
County—lacked jurisdiction because the grand jury of a different court—the 179th
District Court of Harris County—presented the indictment. Appellant relies on the
grand jury foreman’s stamp on the indictment to support his argument that the grand
jury of the 179th District Court presented the indictment. Appellant contends that a
grand jury serves a particular court, not a particular county, and therefore, when the
179th District Court’s grand jury presented the indictment, it did not vest jurisdiction
over the case in the 182nd District Court. According to appellant this means of
presentment created a jurisdictional defect that can be raised for the first time on
appeal. Our Houston sister court recently considered and rejected this argument in
Davis v. State, 519 S.W.3d 251 (Tex. App.—Houston [1st Dist.] 2017, pet. filed).
“Any procedural challenge to the transfer of a case within a county is . . . determined
and resolved by proper application of local rule promulgated pursuant to
constitutional and statutory authority; it is not a jurisdictional defect.” Id. at 256
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(citing Tex. Gov’t Code § 74.094 (West 2015)); Bourque v. State, 156 S.W.3d 675,
678 (Tex. App.—Dallas 2005, pet. ref’d). We agree with our sister court and hold
that appellant waived this issue for appellate review.

      Criminal district courts have original jurisdiction in felony criminal cases.
Tex. Code Crim. Proc. Ann. art. 4.05 (West 2015). To vest a court with jurisdiction
of a criminal action, a grand jury must present an indictment or information charging
a person with committing an offense. Tex. Const. art V, § 12(b); see Tex. Code Crim.
Proc. art. 20.21 (West 2015). Appellant asserts that because a trial court acquires
jurisdiction upon presentment of the indictment, the trial court did not acquire
jurisdiction because the indictment was not properly presented.

      A district court forms and impanels a grand jury and empowers it to inquire
into indictable offenses, including attempted capital murder. See Tex. Code Crim.
Proc. Ann. art. 20.09 (West 2015) (“The grand jury shall inquire into all offenses
liable to indictment of which any member may have knowledge, or of which they
shall be informed by the attorney representing the State, or any other credible
person.”); Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987). After
hearing testimony, a grand jury votes concerning the presentment of an indictment.
See Tex. Code Crim. Proc. Ann. art. 20.19 (West 2015); Ex parte Edone, 740 S.W.2d
at 448. After presentment, the State files the indictment in a court with jurisdiction
to hear the case. Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995);
Bourque, 156 S.W.3d at 677. All state district courts within the same county have
jurisdiction over the same cases. See Tex. Gov’t Code Ann. § 74.094; Davis, 519
S.W.3d at 254.

      Although a specific district court may impanel a grand jury, all cases returned
by that grand jury are not necessarily assigned to that court. Bourque, 156 S.W.3d
at 678. A case assigned to a district court other than the district court to which the

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grand jury presented the indictment amounts only to a procedural irregularity, not a
jurisdictional defect. See Davis, 519 S.W.3d at 254; see also Tamez v. State, 27
S.W.3d 668, 671 (Tex. App.—Waco 2000, pet. ref’d) (no jurisdictional defect where
grand jury empaneled by 232nd Judicial District Court of Harris County returned
indictment, which was later filed in 180th Judicial District Court of Harris County);
see also Mosley v. State, 172 Tex. Crim. 117, 120, 354 S.W.2d 391, 393–94 (1962)
(rejecting “jurisdictional” challenge where defendant was tried and convicted in
district court other than one that empaneled grand jury even though record contained
no transfer order). An objection to a procedural irregularity must be raised in the trial
court. Tamez, 27 S.W.3d at 671. Appellant did not raise his complaint in the trial
court.

         The accused waives a defect in a charging instrument unless the accused raises
it before trial. See Studer v. State, 799 S.W.2d 263, 268–69 (Tex. Crim. App. 1990);
see also Ex parte Matthews, 873 S.W.2d 40, 41 (Tex. Crim. App. 1994); Fisher v.
State, 887 S.W.2d 49, 60–61 (Tex. Crim. App. 1994) (addressing whether an
indictment is facially incomplete and analyzing the sufficiency of the evidence in
relation to that indictment); State v. Yount, 853 S.W.2d 6, 8 (Tex. Crim. App. 1993)
(considering whether an indictment is sufficient if it indicates an offense date that is
barred by the statute of limitations, and holding that “jurisdiction was conferred upon
the trial court by the presentment of the charging instrument, even if the charging
instrument was flawed”). If the defendant fails to direct the trial court’s attention to
the defects in the charging instrument before trial, the defendant may not raise those
defects on appeal. See Martin v. State, 346 S.W.3d 229, 232 (Tex. App.—Houston
[14th Dist.] 2011, no pet.). The indictment in this case is a written instrument
presented to a court by a grand jury charging a person with the commission of an
offense, and appellant does not argue otherwise. See Tex. Const. art. V, § 12(b);


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Martin, 346 S.W.3d at 231–33. Thus, the presentment of the indictment vested the
trial court with jurisdiction, regardless of any irregularity as to which grand jury
presented the indictment. See Tex. Const. art. V, § 12(b); Martin, 346 S.W.3d at
231–33. Appellant’s indictment reflects that it was filed with the Harris County
District Clerk and signed by the grand jury foreman of the 179th District Court. The
indictment charges appellant with attempted capital murder, a felony offense.
Therefore, the indictment was properly presented to vest the 182nd District Court
with jurisdiction of appellant’s case. So, to avoid waiver, appellant had to raise any
objection to proceeding in the 182nd—a procedural irregularity—in the trial court.
See Davis, 519 S.W.3d at 256. Appellant did not complain to the trial court about
this alleged defect or about proceeding in the 182nd District Court. Appellant filed
no motion to quash or other pretrial motion complaining of the alleged defect.
Appellant failed to preserve error on his complaint. We overrule appellant’s sole
issue on appeal and affirm the trial court’s judgment.




                                       /s/       Kem Thompson Frost
                                                 Chief Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Publish — Tex. R. App. P. 47.2(b).




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