Tamez v. State

• Decision Date: 31 August 2000
• Docket Number: No. 10-98-313-CR,10-98-313-CR
• Citation: 27 S.W.3d 668
• Parties: (Tex.App.-Waco 2000) RAUL TAMEZ, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 668

27 S.W.3d 668 (Tex.App.-Waco 2000)

RAUL TAMEZ, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-98-313-CR

IN THE TENTH COURT OF APPEALS

August 31, 2000

From the 12th District Court Madison County, Texas Trial Court # 9892-012-14

[Copyrighted Material Omitted]

Before Chief Justice Davis, Justice Vance and Justice Gray

O P I N I O N

REX D. DAVIS, Chief Justice

A jury convicted Raul Tamez of possession of a deadly weapon in a penal institution. See Tex. Pen. Code Ann. § 46.10(a)(2) (Vernon 1994). The jury found that Tamez had been previously convicted of a felony and assessed his punishment at fifteen years. Tamez claims in three issues that the court erred by: (1) overruling his motion to quash the enhancement allegation; (2) limiting his voir dire examination; and (3) denying his request to present a second jury argument following the State's closing argument. We will affirm.

THE ENHANCEMENT ALLEGATION

Tamez contends in his first issue that the court erred by overruling his motion to quash the enhancement allegation. He alleges that the conviction alleged for enhancement purposes is void because it was obtained in the 180th District Court of Harris County even though a grand jury empaneled by the 232nd District Court of Harris County presented the indictment. He suggests that, because the indictment was returned by a grand jury empaneled by the 232nd District Court, it was necessarily "filed in" that court, and thus, the 180th District Court did not have jurisdiction over the matter.

Assuming without deciding that an indictment must be filed in the same district court which empaneled the grand jury, Tamez has failed to preserve this issue for our review.¹ Article 1.14(b) of the Code of Criminal Procedure requires a defendant to object to any defect of form or substance in an indictment before the trial on the merits or "he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding." Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2000). Although article 1.14(b) is relatively new, it merely codifies extant case law on the question raised by Tamez.

Section 24.303(a) of the Government Code authorizes district judges in counties with more than one district court to, "on their own motion, transfer any . . . criminal case or proceeding on their dockets to the docket of [any other district court in the county exercising criminal jurisdiction]." Tex. Gov. Code Ann. § 24.303(a) (Vernon 1988). Texas statutes have long provided for such transfers. See, e.g., Act of May 24, 1965, 59th Leg., R.S., ch. 442, § 10c(B), 1965 Tex. Gen. Laws 895, 899-900 (amended 1967) (current version at Tex. Gov. Code Ann. § 24.273 (Vernon 1988)).²

Settled case law establishes that a defendant may not complain for the first time on appeal that he has been tried and convicted in a court other than the one to which the indictment was returned:

[I]n instances in which there are two district courts, each having criminal jurisdiction, situated in the same county, and [a] legislative provision [exists] authorizing the transfer of cases from one to the other, it is too late on appeal to complain, as is done in the present case, that the trial is upon an indictment filed in one of the courts and the trial is had in the other. Under such circumstances, the presumption will be indulged that the proper transfer was made.

Mosley v. State, 172 Tex. Crim. 117, 120, 354 S.W.2d 391, 393-94 (1962) (quoting Brady v. State, 119 Tex. Crim. 178, 182-83, 44 S.W.2d 373, 375 (1931) (op. on reh'g)); accord McNeal v. State, 171 Tex. Crim. 180, 181, 346 S.W.2d 345, 346 (1961); see also State v. Smith, 957 S.W.2d 163, 164-65 (Tex. App.--Austin 1997, no pet.) (indictment returned by Runnels County grand jury but filed in Tom Green County district court should have been challenged before entry of guilty plea).

Nevertheless, Tamez contends that his claim fits within the narrow exception to article 1.14(b) that jurisdictional defects in an indictment may be raised for the first time on appeal. See, e.g., Cook v. State, 902 S.W.2d 471, 479-80 (Tex. Crim. App. 1995) (indictment which fails to charge "a person" with commission does not vest trial court with jurisdiction and may be challenged for first time on appeal). We disagree. Article V, section 12 of the Texas Constitution defines an indictment as "a written instrument presented to a court by a grand jury charging a person with the commission of an offense." Tex. Const. art. V, § 12(b). The trial court's jurisdiction vests upon the filing of such an indictment. Cook, 902 S.W.2d at 476; Smith, 957 S.W.2d at 165.

In Tamez's case, the indictment filed in the 180th District Court clearly charged him with burglary of a habitation. Thus, the indictment invested that court with jurisdiction over Tamez's case. Id. The defect raised by Tamez concerns a procedural irregularity which he should have raised in a pre-trial motion before he pleaded guilty to the allegations of that indictment. See Smith, 957 S.W.2d at 164-65; Tex. Code Crim. Proc. Ann. art. 1.14(b); see also Mosley, 172 Tex. Crim. at 120, 354 S.W.2d at 393-94; McNeal, 171 Tex. Crim. at 181, 346 S.W.2d at 346; Brady, 119 Tex. Crim. at 182-83, 44 S.W.2d at 375. His failure to do so constitutes a waiver of his right to challenge this irregularity in a subsequent proceeding.³ Id. Accordingly, we overrule Tamez's first issue.

LIMITATIONS ON VOIR DIRE

Tamez argues in his second issue that the court abused its discretion by limiting the duration of his voir dire examination. The State's voir dire lasted approximately thirty minutes. After Tamez's counsel had questioned members of the venire for almost ninety minutes, the trial court gave her a five-minute warning. Shortly thereafter, the court warned her that she had only two more minutes. Finally, the court advised counsel that her time had expired. She asked permission to pose one more question to the panel, which the court allowed.

The court then excused the venire panel from the courtroom so the parties could assert their challenges for cause and exercise their peremptory challenges. At this time, Tamez's counsel proffered a bill of exception detailing the areas of inquiry she had not had opportunity to review with the members of the venire panel. Specifically, she wanted to explore whether:

* each of the panelists could follow the court's instruction to disregard any evidence improperly admitted;

* each could follow the law regarding the accused's right to remain silent at trial;

* each could consider a sentence of two years for the offense alleged;

* any of the panelists knew five particular persons whom counsel named;⁴

* any had been victims of crime in the past; and

* any wanted to serve or did not want to serve on the jury.

A trial court has broad discretion to control the conduct of the voir dire examination. See Caldwell v. State, 818 S.W.2d 790, 793 (Tex. Crim. App. 1991); Torres v. State, 4 S.W.3d 832, 835 (Tex. App.--Texarkana 1999, pet. ref'd); Splawn v. State, 949 S.W.2d 867, 871 (Tex. App.--Dallas 1997, no pet.). Generally, the court should allow counsel wide latitude in conducting the voir dire. Guerra v. State, 771 S.W.2d 453, 467 (Tex. Crim. App. 1988); Torres, 4 S.W.3d at 835; Splawn, 949 S.W.2d at 871. However, the court may place reasonable limitations on the voir dire "for various reasons, among them to curb the prolixity of what can become the lengthiest part of a criminal proceeding." Guerra, 771 S.W.2d at 467; Splawn, 949 S.W.2d at 871; accord Torres, 4 S.W.3d at 835. We review the propriety of such limitations under an abuse-of-discretion standard. McCarter v. State, 837 S.W.2d 117, 120 (Tex. Crim. App. 1992) (citing Ex parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App. 1990)); Torres, 4 S.W.3d at 835.

When the parties conduct a voir dire examination of the venire panel collectively, an appellant demonstrates that the court's limitation of voir dire was an abuse of discretion by showing: (1) counsel did not attempt to prolong the voir dire; and (2) counsel was prohibited from asking proper voir dire questions. Etheridge v. State, 903 S.W.2d 1, 10 (Tex. Crim. App. 1994); McCarter, 837 S.W.2d at 121; S.D.G. v. State, 936 S.W.2d 371, 380 (Tex. App.--Houston [14th Dist.] 1996, writ denied). When counsel is not permitted to address particular questions to individual members of the venire, the appellant must also show that a panelist whom counsel was prohibited from questioning actually served on the jury. Id.

To decide whether counsel attempted to prolong the voir dire, we review the record to see if the questions counsel posed were "irrelevant, immaterial or unnecessarily repetitious." Ratliff v. State, 690 S.W.2d 597, 599 (Tex. Crim. App. 1985); Torres, 4 S.W.3d at 835; Splawn, 949 S.W.2d at 871. As a part of this analysis, we examine whether counsel appropriately budgeted the time allotted for voir dire. See Whitaker v. State, 653 S.W.2d 781, 781 (Tex. Crim. App. 1983); Torres, 4 S.W.3d at 836; Thacker v. State, 889 S.W.2d 380, 391 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd).

In Tamez's case, the State conducted its voir dire examination in thirty minutes. The court did not ask Tamez's counsel to conclude her voir dire until after nearly ninety minutes.⁵ A chronological breakdown⁶ of Tamez's voir dire reveals that it was conducted as follows:

                introductory matters (discussion of role of defense               5 minutes
                counsel and import of fair trial with unbiased
                jurors and explanation of strike process)
                credibility of witnesses (could jurors accept the                 29 minutes
                testimony of a TDCJ inmate over the word of a TDCJ
                guard)
                burden of proof                                                   12 minutes
                prior jury service                                                10 minutes
                definition of deadly weapon

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