Amos, Nicholas Davell, PD-0503-15

Amos, Nicholas Davell

PD-0503-15

| Tex. App. | Jun 26, 2015

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Case Information

500-15

SOI-15

SO2-15 SO3-15 SO4-15 SO5-15

NO. PD-0501-15

IN THE

COURT OF CRZRZHUL APPEALS AUSTIN, TEXAS

RECEIVED IN

COURT OF CRIMINAL APPEALS JUN 262015

NICHOLAS DAVEL AHOS

vs.

THE STATE OF TEXAS

ON APPEAL FRONT THE COURT OF APPEALS, FIFTH DISTRZET OF TEXAS AT DMLAS NO. 05-14-00918-CA; NO. 05-14-01333-CA; NO. 05-14-01334-CA; NO. 05-14-01335-CA; NO. 05-14-01336-CA; AND NO. 05-14-01337-CR. ON APPEAL FRONT THE 2913T JUPZCZAL DISTRZET COURT DALLAS COURTY TEXAS TRZAL COURT CAUSE NO. F13-41905-4; F12-31502-4; F13-31526-4; F13-41904-4; F14-40593-4; AND F14-40594-4.

PETZTZUN FFA DISCAETZONAARY REVEAL TO THE HONDARASE TUDENES OF THE COURT OF CRZRZHUL APPEALS:

Now COMES, NICHOLAS DAVEL AHOS, PETZTZONFA FAS-SE AND PETZTZONS THE COURT TO REVEAL THE TUDENHATT APPEARZING HIS CONVZCZZANS FOR FRACULENT USE OF PESSESZZON OF ICENTIFFYZNGZ ZNFGANZTZON OF AN EDEALY PERSON, FARGERY BY CHECK, FARGERY OY CHECK OF AN EDEALY PERSON, FARGERY OF A FRAGULENT INSTRUMENT, AND TAMARAWG-WETH-A FREEDYTN MENT RECORD. COURT OF CRIMINAL APPEALS

STATEMENT OF THE CASE. JUN 262015

Abel Acosta, Clerk

AND PERCED GUZLITY TO THE FOLLOWZNGS OF FANSES: FRAGULENT USE OF PESSESZZON OF ICENTIFFYZNGZ ZNFGANZTZON OF AN ELDERLY PERSON (CAUSE NO. 05-14-00978-CA); FARGERY BY CHECK (CAUSE NO. 05-14-01333-CA AND 05-14-01334-CA);

Forgery by cherk of an elderly person (cause No. 05-14-01335-cR); FARGERY of a fznanczM instrument (cause No. 05-14-01336-cR); ANO tamarino with a Govenniental record (cause No. 05-14-01337-cR). SE TEX. ANUM CASE ANN. 8832.21 (b),(d);(e-i); 32.51 (b)(i)(e-i); 37.10 (b)(2), (c)(a) (A) (west 2011, subp. 2014). Petetsoner Also Reeded true to two enuancement tamagrams conTanned in each important. After fulozing Petetsoner Guzly and the enuancement tamagrams true, the TREAK count assessed multsHient at twenty-Five (25) years MP. Personment on his conVectans for fraudhent use of possessiON of adentifying information of an elderly person, farGERY by check of an elderly person, ANO tamperino with a Govennental record, ANO TEN (10) years tamarison ment on the Remarxive TREE (3) forgery conVectans.

The conVectans were affected by the count of areaks, fofth distrect of texas at divLAS on March 31,2015.

3tament of ProceDUAe History.

The conVectans were affected by the count of areaks fofth distrect of texas at divLAS on March 31,2015.

No Motions for Re:Rerable was fixed by Petetsoner. Petetsoner fixed his 80 -se motion for an extension of time in which to fale his Petetson for discrertionary review on Friday, May 1,2015; the count of oranznal areaks oriented the time to fale the Petetson to Monday, June 29,2015.

GRANNOs for REIzeW

(i). Petetsoner argues the count of areaks erRed in HeD. ING the 291st SubzcZM DISTRECT count HAd JERzSDzEtion To Hera the instant assessinO RELER TUBGMENT SEEALSE of the TRANSFA DROER; ANO (a) Petetsoner argues the count of areaks erRed an HadTING the evidence is sufficient to support the Guzly REA:

AERONMENTS

(1) PETITZONER AREUES THE COURT OF ARPENIS ERREO ON HUO. THE THE ZEIST DIDZCEAL DISTRICT COURT HAG JURISDZCTZON To HEDA THE INSTANT CASES AND RENGER JUDGMENT BEALNE OF THE TRANSFER ORDER.

THE TEXAS CONSTITUTION PROVIZDES THAT A COURT IS VESTED WITH JURISDZCTZON OVER A CRAMINAL CASE BY THE PRESENTMENT OF AN INCOUPMENT OR JURAMATZON TEX. COIIST. ART. V SETTAN 12.(b). AN INCOUPMENT TES PRESENTED WHEN IT WAS COUT. DUEY ACTED ON BY THE GRAND JURY AND RELEVED BY THE TREAL COURT. TEX. CODE CRam. PROC. ANIN. ARtEcle 12.06. STATUTARY PROVISIONS ALSO CODEEY THE NECESSARY RESULT IMPLIED BY ARTELE V SETTAN 12 ABOVE THAT THE TREAL COURT LACKS JURIS. DZCTZON ON THE ADSENCE OF FRUER PRESENTMENT. TEX. CODE CRam. PROC. ANIN. ARtELE 32.01 (REGLURING AN INCOUPMENT TO BE DISMISSED IF NOT PRESENTED ON THE RECEVING COURT UNLESS IT IS TRANSFERED TO ANOTHER COURT. TEX. CODE CRam PROC.ANN ARtEcle 9.16.

THE ONLY MECHANISM FOR TRANSFERRING THE POWER TO TAY A PELMY IS BY AN ORDER OF TRANSFER CONGAMED WITH AN ORDER OF RECEVING. CONGAMED, THESE CONSTITUTE A WRITTEN ALGREMED BY THE RECEVING. COURT ISSUES AN ORDER FORMALLY TRANSFERRING. JURISDZCTZON OVER THE CASE. THE SECOND COURT ACCEPT THE CASE BY ISSUING A FORMAL ORDER RECEVING. TEX. GEN'T CODE ANN SETTAN 29.003.

THE INSTANT CASE WAS PRESENTED TO ZEIST DISTRICT COURT OF DALLAS COUNITY, TEXAS. JURISDZCTZON WAS THEUS UNVESTED ON THE COURT. THE INSTANT CASE LATER ARPENIED ON THE ZEIST DISTRICT COURT WHERE IT BEALNEE DIDDUEH THE EATRY OF JUDGMENT. HOWEVER, THERE IS NOTHING-ON-THE RECORD SHERMANN THAT JURISDZCTZON WAS EVER TRANSFERED BY ZEES TH DISTRICT COURT TO THE ZEIST DISTRICT COURT. THEREFORE, IT ARPENIS THAT THE ZEES TH DISTRICT COURT "RETANDS" JURISDZCTZON, TUST AS ARTELE 9.16 STATES, PETITZONER CONTENDS THAT THE ZEIST DISTRICT COURT NEVER ACAUXED JURIS. DZCTZON ON THEE MATTER.

*4 LACL. OF JURISOFETTION OVER A CASE RANDERS A TREAL COURT'S TUBGMENT YOZD. EX PARTES SEEORO 39 SW 28 GAII (TEX. CRXM. APp. 8001); HOMNE v. STATE, 872 SW2R 694 (TEX.CRAM. AP. 1993). A DEPET WHEEL RANDERS A SENTENUE VOZD MAY BE RAISED FOR THE FIRST TREE ON APEND. HEATH V STATE, 817 SW2R 335 (TEX. CRXM APp. 1991).

THE RIGHT TO BE TREED IN A COURT THAT HAS PROFERLY ACQUIRED JURISOFETTION OVER A CASE IS ASSALUTE. MAREN V. STATE, 851 SW2R 275 (TEX.CRAM. APp. 1993). SUCH A RIGHT TO CANNOT BE WAKING OR FOREETED, EVER WETH CONSENT. . Id. THIPERENTATZON IS NOT OPTIONAL, IT IS ANALYS REQUIRED. Ie Q 279. ERROR IN THIS REGARD IS NOT SUBJECT TO FURTHER ANALYSIS. THIS A DEPENDENT MAY COMPLAIN ABOUT THIS VIGLATION OF AN ASSALUTE RIGHT ON APEND WITHEUT HAVERE RAISED THE QUESTION IN THE TREAL COURT. Id Q 280.

PETETENER NOW COMPLAINS THAT THE 281st DISTRECT COURT NEVER REQUIRED JURISOFETTION OVER THE INSTANT CASE, ONT HE ACKNOWLEDGES THAT AUTHORITY IS AGAINST HIS PESTION SEE E.g. HELLS v. STATE, 792 SW2R 832 (TEX.AP. DALLAS 1989); GARCIA v. STATE, 901 SW2R 731 (TEX. AP. HANTOON [HYM DEST] 1995). THESE ONSIS AL HOLD THAT THE PRESENT ISSUE MUST BE RAISED OF THE TREAL COUNIER OR IT IS WAKING. HOWEVER, THEY SAMPLEY CITE TO THEER ANTEGEMENTS WITHEUT ANY CONSTRUTTENAL OR STRUCTORY AUTHORITY FOR THE PROPSENTION THAT A JURISOFETENINE DEPENT CAN BE CURRED BY PROCEDURAL DEPART.

(2) PETETENER ANALYS IS MAT THE COURT OF APERGALS EREAD IN HOLDERS THAT THE EXTEDANCE IS SUPPORT TO SUBSET THE GUZILTY PIRR.

THE CASE WAS CALLED TO TREAL ALONG WITH FIVE OTHERS. AT THAT THE PETETENER ENTERED A PER OF GUZILTY WITHENT A PER AGREEMENT. THE STATE THEN APPERED: "STATE'S EXHERET 1, THE DEPENDENT'S SEEMED WRITTEN VOLUNTARY TUPUCCAL CAN. FESSON AND STERLATZON OF THE EXTEDANCE IN EACH OF THE SEX CASES." THE PROBLEM IN THE INSTANT CASE IS THERE IS 'No'

*5 IUDICZM CONFESSION MANARD AS AN EXHERIT ANO THEREFORE NO SUEH EXHERIT WAS ADMITTED INTO EVIDENCE.

EVIDENCE OFFERED IN SUPPORT OF A GUZLITY PLEA MAY TAKE MANY FORMS. MANEFFEE v. STATE 287 SW3A 9 (TEX. CR2M. AP. 2069). THE SATURE EXPRESLY PROVIDES THAT THE DEPENDANT MAY CONSENT TO THE PROFFER OF EVIDENCE IN TESTIMINIZAL OR DOCUMENTARY FORM, OF TO AN ORAL OR WRITTEN STZALATZON OF WHAT THE EVIDENCE AGAINST HAN WOULO BE, WITHOUT NECESSARZLY ADMITTING TO ITS VERDICT OR AGEURACY, ANO SUEH A PROFFER OF STZALATZON OF EXPENICE WEIL SUPPZCE TO SUPPORT THE GUZLITY PLEA AS LONG AS IT EMERACES EXERY EXPENT OF THE CURGEO OFFERSE. HAMMOND F. STATE 950 SW 22 683 (TEX. CR2M. AP. 1971). ALTEAMATZVEY, A DEPENDANT MAY ENTER A SWORN WRITTEN STATEMENT, OR TESTZFY IN ORAL COURT SPECIFICALLY ADMITTZING HIS CULPACILITY OF AT LEAST ACKNOWLEDGEING GENERALLY THAT THE ALLEGATZOLS AGAINST HOA ARE THEE ANO CORRECT. SPRENKE V. STATE, 950 SW 242 387 (TEX. CR2M. AP. 1970).

ARTZCLE I. IS REQUIRES SUBSTANTEXITZM OF A GUZLITY PLEA. IT REQUIRES EVIDENCE IN ADDITTZM TO, ANO INDEPENDENT OF THE PLEA ITEELY TO ESTABLISH THE DEPENDENT'S GUZLT. BEYRAT V. STATE, 818 SW24 782 (TEX. CR2M APPEAL 1991). THIS A DEPENDENT'S "SWORN ARFERMATZON, IN RESPONSE TO THE TRZAL COURT'S QUESTIONING, THAT THE WAS DIFECT RECOURIG GUZLITY TO THE CURGEES IN THE INDIECTMATI DOES NOT CONSTZTUTE A DUOZCZM CONFESSION AND DOES NOT OTHERWYSE SUPPLY EVIDENCE, IN WHELE OR IN PART, SUFFICIERT TO SUPPORT THE PLEA UNDER ARTZCLE I. IS. A GUZLITY PLEA ENTERED UNDER OATH IS STELL A GUZLITY PLEA. IT DOES NOT PROVIDE INDORADOPT EVIDENCE TO SUBSTANTEXTE THE DEPENDANT'S GUZLT." HENEFTEE V. STATE, OR.11-18.

AN EXAMINATION OF THE RECORD IN THE INSTANT CASE FAILS To SHOW ANY EVIDENCE ADMITTED IN SUPPORT OF THE GUZLITY PLEA. THEREOR THE PRODONCERTAST OF GUZLT YZOLATES TEX. CODE CR2M. PROC. ANN. ARTZCLE I. IS.

PRAYER FOR RELIEF

The Retitcater Therefore PRAYS the canrt Grants DISCRETITMARY RELIEV or REMAND the case for further RELIEV OF this claims, or Grant ALL APROFREATE RELIEF.

Respectfully SCRMETTED Nicholas D. Flumery Nicholas DAVEL anOS

NOTICE

OFFENCER NOTARY DIRECTS SERVICE My Name IS NICHOLAS DAVEL ANOS My Date of PARTY IS January 12, 1965, AND MY INHATE IDENTIFYING NUMBER IS 1932817. I AM PRESENTLY INCARCERATED IN EYLL CLEMENTS WYET IN ANARELLO, PETTER COUNITY TEXAS 79107-9606. I DECLINE UNDER PENNETY OF PARTIARY THAT THE FOREGOING IS TRUE AND CORRECT.

EXECUTED ON the 21st DAY OF JUNE, 2015 Respectfully SCRMETTED Nicholas D. Flumery Nicholas DAVEL ANOS

*7 AFFIRMED; Opinion Filed March 31, 2015.

In The Court of &ppeals fifth District of Eexas at Ballas

No. 05-14-00978-CR No. 05-14-01333-CR No. 05-14-01334-CR No. 05-14-01335-CR No. 05-14-01336-CR No. 05-14-01337-CR

NICHOLAS DAVELL AMOS, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause Nos. F13-41905-U, F12-31502-U, F13-31526-U, F13-41904-U, F14-40593-U, and F14-40594-U

MEMORANDUM OPINION Before Justices Lang, Stoddart, and Schenck Opinion by Justice Stoddart Nicholas Davell Amos appeals his convictions for fraudulent use or possession of identifying information of an elderly person, forgery by check, forgery by check of an elderly person, forgery of a financial instrument, and tampering with a governmental record. In two issues, appellant contends the trial court lacked jurisdiction to hear the cases and render the

judgments and the evidence is insufficient to support the convictions. We affirm the trial court's judgments.

BACKGROUND

Appellant waived a jury and pleaded guilty to the following offenses: fraudulent use or possession of identifying information of an elderly person (cause no. 05-14-00978-CR); forgery by check (cause nos. 05-14-01333-CR and 05-14-01334-CR); forgery by check of an elderly person (cause no. 05-14-01335-CR); forgery of financial instrument (cause no. 05-14-01336CR); and tampering with a governmental record (cause no. 05-14-01337-CR). See Tex. PeNAL CODE ANN. §§ 32.21(b), (d), (e-1), 32.51(b)(1), (c-1), 37.10(a)(2), (c)(2)(A) (West 2011 & Supp. 2014). Appellant also pleaded true to two enhancement paragraphs contained in each indictment. After finding appellant guilty and the enhancement paragraphs true, the trial court assessed punishment at twenty-five years' imprisonment on his convictions for fraudulent use or possession of identifying information of an elderly person, forgery by check of an elderly person, and tampering with a governmental record, and ten years' imprisonment on the remaining three forgery convictions.

TRANSFER ORDER

In his first issue, appellant contends the trial court lacked jurisdiction to hear the cases and render the judgments because they were not transferred to its docket. Appellant argues the cases were presented to the 195th Judicial District Court, and there were no orders transferring the cases from that court to the 291st Judicial District Court where they were heard and the judgments rendered. The State responds that the trial court always had jurisdiction over these cases; therefore, no transfer orders were necessary.

*9 A grand jury formed and impaneled by a district judge inquires "into all offenses liable to indictment," and hears all the testimony available before voting on whether to indict an accused. Tex. Code Crim. Proc. Ann. art. 20.09, 20.19 (West 2005); Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987). A grand jury is "often characterized as an arm of the court by which it is appointed rather than an autonomous entity." Dallas Cnty. Dist. Attorney v. Doe, 969 S.W.2d 537, 542 (Tex. App.-Dallas 1998, no pet.). After the conclusion of testimony, a grand jury votes "as to the presentment of an indictment." Tex. Code Crim. Proc. Ann. art. 20.19. Following presentment, an indictment is filed in a court with competent jurisdiction, i.e., jurisdiction to hear the case. See Hultin v. State, 171 Tex. Crim. 425, 351 S.W.2d 248, 255 (1961).

In counties having two or more district courts, the judges of the courts may adopt rules governing the filing, numbering, and assignment of cases for trial, and the distribution of the courts' work they consider necessary or desirable to conduct the business of the courts. See TEX. Gov't Code Ann. § 24.304 (West 2004); see also Tex. Gov't Code Ann. § 74.093 (West 2013) (addressing adoption of local rules of administration to provide, in part, for assignment, docketing, transfer, and hearing of all cases). Thus, a specific district court may impanel a grand jury, but it does not necessarily follow that all cases returned by the grand jury are assigned to the impaneling court. See Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.-Dallas 2005, pet. ref'd).

While the record shows the 195th Judicial District Court presided over the grand jury that returned the six indictments, the cases were thereafter filed in the 291st Judicial District Court. We take judicial notice that both of these courts are located in Dallas County. Nothing in the record indicates the cases were ever filed in or appeared on the trial docket of the 195th Judicial

*10

District Court. Because the 291st Judicial District Court had jurisdiction to hear appellant's cases and render the judgments, we overrule appellant's first issue.

InSUFFICIENT EVIDENCE

In his second issue, appellant contends the evidence is insufficient to support his convictions for forgery by check (cause nos. 05-14-01333-CR and 05-14-01334-CR), forgery of a financial instrument (cause no. 05-14-01336-CR), and tampering with a governmental record (cause no. 05-14-01337-CR). Appellant argues there is no evidence admitted in support of his guilty pleas, in violation of article 1.15 of the Texas Code of Criminal Procedure, because the judicial confessions were not marked as exhibits in the cases. The State responds the evidence is sufficient to support the convictions.

NICHOLAS DAVELL AMOS, Appellant No. 05-14-01337-CR V.

THE STATE OF TEXAS, Appellee

Appeal from the 291st Judicial District Court of Dallas County, Texas (Tr.Ct.No. F14-40594-U). Opinion delivered by Justice Stoddart, Justices Lang and Schenck participating.

Based on the Court's opinion of this date, the trial court's judgment is AFFIRMED.

Judgment entered this March 31st of March, 2015.

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