Devontae Kavauer Magby v. State ( 2015 )

Affirmed and Opinion Filed June 10, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01114-CR
DEVONTAE KAVAUER MAGBY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-13-60514-W
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Whitehill
Devontae Kavauer Magby pled guilty to aggravated assault of a child younger than
fourteen years of age. The jury found him guilty as instructed by the court and assessed
punishment at forty-five years’ imprisonment. In two issues on appeal, Magby argues that (i) the
trial court lacked jurisdiction because the indictment was returned in one court in the same
county and (ii) erred by including the statutorily required parole and good conduct instruction in
the jury charge. Concluding that Magby’s arguments lack merit, we affirm the trial court’s
judgment.
Did the Trial Court Lack Jurisdiction?
The indictment in this case was returned in the 203rd District Court but was first filed in
the 363rd District Court. The case was heard and the judgment rendered in the 363rd District
Court. Both courts are seated in Dallas County. Magby’s first issue argues that the 363rd Court
lacked jurisdiction because there is no written transfer order between the two courts.
We have considered and rejected this argument numerous times, and we reject it again.
See Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet ref’d). We thus
overrule Magby’s first issue.
Was the Statutorily Required Instruction Given in Error?
Magby’s second issue argues that the trial court erred by including a good conduct time
instruction in the jury charge on punishment. According to Magby, the instruction is misleading
and erroneous because he is not eligible for good conduct time.1 The Court of Criminal Appeals
holds otherwise.
In Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002), the court held that Texas
Code of Criminal Procedure art. 37.07, § 4(a) requires the trial court to instruct the jury with the
statute’s precise wording although it may not apply in certain cases. Id. Because the legislature
mandates giving this instruction, a trial does not err in doing so. Id.
We thus conclude that the trial court did not err in giving the required instruction and
reject Magby’s second issue.
For the above reasons, the trial court’s judgment is affirmed.
Do Not Publish
TEX. R. APP. P. 47 /Bill Whitehill/
141114F.U05 BILL WHITEHILL
JUSTICE
1
Magby does not explain how the purportedly erroneous charge caused him harm.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DEVONTAE KAVAUER MAGBY, On Appeal from the 363rd Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F-13-60514-W.
No. 05-14-01114-CR V. Opinion delivered by Justice Whitehill.
Justices Francis and Lang-Miers
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 10, 2015.
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