Jesus Delarosa v. State

Affirmed as modified; Opinion Filed November 26, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01507-CR
No. 05-18-01508-CR
No. 05-18-01509-CR
JESUS DELAROSA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F-1851184-T, F-1851183-T, and F-1776833-T
MEMORANDUM OPINION
Before Justices Bridges, Molberg, and Partida-Kipness
Opinion by Justice Partida-Kipness
Jesus Delarosa challenges his convictions following the adjudication of guilt for the
offenses of possession of methamphetamine, possession of heroin, and sexual assault. Delarosa
contends the trial court did not have jurisdiction to hear the cases and render judgment. The State
has responded and brings three cross-issues to correct errors in the trial court’s written judgments.
We sustain the State’s cross-issues and affirm the trial court’s judgments as modified.
Background
Delarosa was charged by indictments with possession of less than one gram of
methamphetamine, possession of more than one but less than four grams of heroin, and sexual
assault of a child by penetration. Each indictment for possession contained an enhancement
paragraph citing a prior felony conviction. All three indictments were presented to a grand jury in
the 283rd Judicial District Court. Delarosa pleaded guilty to all three offenses and pleaded true to
the enhancements. The 283rd Judicial District Court accepted Delarosa’s pleas and held a
consolidated punishment hearing, sentencing Delarosa to ten years’ imprisonment for
methamphetamine possession, ten years’ imprisonment for heroin possession, and forty years’
imprisonment for sexual assault, to be served concurrently. This appeal followed.
Analysis
In a single issue, Delarosa contends the trial court lacked jurisdiction because the cases
were originally presented for indictment in a different trial court, and there were no written orders
transferring the cases to the court that tried them and rendered judgment.
When a defendant fails to file a plea to the jurisdiction, he waives any right to complain
that a transfer order does not appear in the record. See Mills v. State, 742 S.W.2d 831, 834–35
(Tex. App.—Dallas, 1987, no writ.); Lemasurier v. State, 91 S.W.3d 897, 899 (Tex. App.—Fort
Worth 2002, pet. ref’d). Delarosa did not file a plea to the jurisdiction in this case.
Further, even if Delarosa had preserved his complaint for our review, this Court has
considered and rejected on numerous occasions the argument that a missing transfer order deprived
the trial court of jurisdiction, and we do so again today. See Bourque v. State, 156 S.W.3d 675,
678 (Tex. App.—Dallas 2005, pet. ref’d) (cases returned by a grand jury are not necessarily
assigned to the court that impaneled the grand jury); Hopkins v. State, No. 05-17-01344-CR, 2018
WL 5024023, at *1 (Tex. App.—Dallas Oct. 17, 2018, no pet.) (mem. op., not designated for
publication) (rejecting argument that a missing transfer order deprived trial court into which a case
was transferred of jurisdiction).
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Moreover, the record reflects that all three indictments were presented to a grand jury in
the same court in which judgment of conviction was entered: the 283rd Judicial District Court.
Thus, the 283rd Judicial District Court had jurisdiction to hear Delarosa’s cases and render
judgment. We overrule Delarosa’s sole issue.
State’s Cross-Issues
The State brings three cross-issues, asking the Court to correct errors in the judgments
entered by the trial court. Specifically, the State asserts the heroin possession judgment refers to
two enhancements when there was only one and the sexual assault judgment lists an incorrect
section of the Texas Penal Code and does not list the victim’s age as required for sex-offender
registration.
This Court has the power to correct and reform the judgment of the court below to make
the record speak the truth when it has the necessary information to do so. See TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). Appellate courts have the power to
reform whatever the trial court could have corrected by a judgment nunc pro tunc when the
evidence necessary to correct the judgment appears in the record. Asberry, 813 S.W.2d at 530.
Appellate courts may reform judgments to correct improper recitations or omissions relating to
punishment, delete affirmative findings improperly entered into the judgment, and correct statutory
references. See id.; Medlock v. State, No. 05-11-00668-CR, 2012 WL 4125922, at *1 (Tex. App.—
Dallas Sept. 20, 2012, no pet.) (mem. op., not designated for publication).
The record reflects that the indictment for heroin possession included only one
enhancement—felony burglary of a habitation—yet the trial court’s judgment indicates that
Delarosa pleaded true to two enhancements. The record also reflects that Delarosa was indicted
and pleaded guilty to sexual assault of a child, which is a violation of section 22.011(a)(2) of the
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Texas Penal Code. See TEX. PENAL CODE § 22.011(a)(2). However, the trial court’s judgment
indicates that the statute for the offense is 20.01 of the Texas Penal Code. Chapter 20 of the Texas
Penal Code concerns offenses for kidnapping, unlawful restraint, and smuggling of persons. The
trial court’s judgment also indicates that sex-offender registration requirements apply to Delarosa
under chapter 62 of the Texas Code of Criminal Procedure but lists “N/A” as the age of the victim
at the time of the offense. See TEX. CODE CRIM. PROC. § 62.051(c)(3) (requiring age of the victim
on sex-offender registration). The record reflects that the victim was fifteen years old at the time
of the offense.
Based on these facts, we sustain the State’s cross-issues and modify the judgments
accordingly. See TEX. R. APP. P. 43.2(b); Asberry, 813 S.W.2d at 529–30.
Conclusion
We affirm the trial court’s judgments as modified.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
181507F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JESUS DELAROSA, Appellant On Appeal from the 283rd Judicial District
Court, Dallas County, Texas
No. 05-18-01507-CR V. Trial Court Cause No. F-1851184-T.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness. Justices Bridges and Molberg
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 26th day of November, 2019.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JESUS DELAROSA, Appellant On Appeal from the 283rd Judicial District
Court, Dallas County, Texas
No. 05-18-01508-CR V. Trial Court Cause No. F-1851183-T.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness. Justices Bridges and Molberg
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The section entitled “Plea to 2nd Enhancement/Habitual Paragraph” is modified
to show “N/A.”
The section entitled “Findings on 2nd Enhancement/Habitual Paragraph” is
modified to show “N/A.”
As MODIFIED, the judgment of the trial court is AFFIRMED.
Judgment entered this 26th day of November, 2019.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JESUS DELAROSA, Appellant On Appeal from the 283rd Judicial District
Court, Dallas County, Texas
No. 05-18-01509-CR V. Trial Court Cause No. F-1776833-T.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness. Justices Bridges and Molberg
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The section entitled “Statute for Offense” is modified to show “22.011(a)(2) Penal
Code.”
The section entitled “Sex Offender Registration” is modified to show “The age of
the victim at the time of the offense was fifteen years.”
As MODIFIED, the judgment of the trial court is AFFIRMED.
Judgment entered this 26th day of November, 2019.
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