                                                                 ACCEPTED
                                                             05-19-00113-CR
                                                   FIFTH COURT OF APPEALS
                                                            DALLAS, TEXAS
                                                            5/2/2019 6:39 PM
                                                                  LISA MATZ
                                                                      CLERK




                IN THE                       FILED IN
                                      5th COURT OF APPEALS
                                          DALLAS, TEXAS
          COURT OF APPEALS            5/2/2019 6:39:21 PM
                                            LISA MATZ
    FOR THE FIFTH DISTRICT OF TEXAS           Clerk


              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
           IDENTITY 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




                               2
                     TABLE 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




                            3
                           INDEX 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




                                          4
                          STATEMENT 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)




                                          5
                              ISSUES 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.




                                          6
                            STATEMENT 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)



                                          7
Officer 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

                                          8
department 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)


                                          9
On 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:

                                          10
      Like, 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)



                                         11
Appellant 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




                                        12
                          SUMMARY 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


                                          13
formally 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


                                          14
regard 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

                                           15
Telephone (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
