Donald Terrell Banks v. The State of Texas--Appeal from Criminal District Court No. 2 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Donald Terrell Banks

Appellant

Vs. No. 11-03-00011-CR B Appeal from Dallas County

State of Texas

Appellee

Pursuant to a negotiated plea agreement, Donald Terrell Banks pleaded guilty to aggravated assault. The trial court found appellant guilty and assessed his punishment at imprisonment for two years. Appellant appeals, alleging a jurisdictional defect. We affirm.

Appellant was indicted in Cause No. F-0175591 for the aggravated assault of Steve Young which occurred on or about September 14, 2001. The indictment shows that it was returned to the A203rd Judicial District Court@ of Dallas County. Appellant pleaded guilty to the indictment in ACriminal District Court No. 2@ of Dallas County. Appellant argues that Criminal District Court No. 2 never acquired jurisdiction over him because his indictment was not returned to Criminal District Court No. 2 and because no transfer order was ever entered transferring the case to Criminal District Court No. 2. We have been provided with a supplemental clerk=s record which contains the minutes of the Grand Jury showing that the indictment in Cause No. F-0175591 was presented and delivered to the A194th Judicial District Court@ and not to the 203rd Judicial District Court. Furthermore, the supplemental clerk=s record contains a transfer order transferring Cause No. F-0175591 (appellant=s aggravated assault case) from the 194th Judicial District Court to Criminal District Court 2 for trial and final adjudication. The minutes of Criminal District Court No. 2 show that appellant=s aggravated assault case (No. F-0175591) was received by Criminal District Court No. 2 for trial and final adjudication. Therefore, the minutes of the 194th District Court and Criminal District Court No. 2 clearly show that a transfer order transferring Cause No. F-0175591 was entered.

The fact that the indictment listed the 203rd Judicial District Court appears to have been a clerical error. Even if the indictment was returned to the 203rd Judicial District Court and there was no transfer order from that court to Criminal District Court No. 2, appellant would have waived his right to complain. The alleged defect would have been a defect in the form of the indictment, and appellant failed to object. See Rodriguez v. State, 899 S.W.2d 658, 663-64 (Tex.Cr.App.), cert. den=d, 516 U.S. 946 (1995). Furthermore, by failing to object at the trial court that a transfer order did not appear in the record, appellant waived his right to complain. See Sharkey v. State, 994 S.W.2d 417, 419 (Tex.App. - Texarkana 1999, no pet=n); Garcia v. State, 901 S.W.2d 731, 732 (Tex.App. - Houston [14th Dist.] 1995, pet=n ref=d); Mills v. State, 742 S.W.2d 831, 835 (Tex.App. - Dallas 1987, no pet=n). Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

August 7, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCloud, S.J.[1]

[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.