II. Articles 19 and 20 of the Texas Code of Criminal Procedure

Second, by not trying to harmonize the provisions, the Court of Appeals

neglected to consider a rather clear way in which the provisions can coexist. Section 10

addresses jury trials in criminal cases. Section 15 deals with jury trials in general (i.e.,

jury trials in both civil and criminal cases). Section 10 can be given effect by limiting its

application to jury trials in criminal cases. Indeed, there is no question that Section 10

is, by its express terms,

79 limited in this way. Section 15, on the other hand, can be given

effect by limiting its application to civil cases. This is a logical way to harmonize the two

provisions and give effect to both of them. Neither provision needs to die.

Third, suppose the Court of Appeals was correct in moving at once to an analysis

of which provision is the more specific. The Court erred in determining that Section 15

is more specific than Section 10. The Court’s entire statement of its reasoning was quite

brief:

Article I, section 15, titled “Right to trial by jury” is more specific than article I, section 10, which explains the general rights of an accused in criminal prosecutions.80

So because Section 10 also speaks of rights defendants possess (i.e.,

confrontation, compulsory process, grand jury indictment) Section 10 is less specific

than Section 15? This is debatable. The contrary conclusion – that Section 10 is more

79 Tex. Const. art. I, section 10 (“In all criminal prosecutions . . . .”). 80 Pacas v. State, 612 S.W.3d at 593.

specific than Section 15 – actually makes more sense. This is because Section 10

addresses the right to a jury trial in criminal cases while Section 15 concerns the jury-

trial right in all cases.

A motion for en banc reconsideration was filed with the Court of Appeals

detailing the foregoing three reasons that the Court’s opinion was problematic. It was

denied without comment. And the Court of Criminal Appeals refused the petition for

discretionary review filed in the case.

If this argument is advanced in other appellate courts of appeals, the conclusions

of the First and Fourteenth Courts of Appeals should be questioned. Perhaps other

intermediate courts of appeals will see this issue differently.

SYSTEMIC ARGUMENT THREE Court A has no Jurisdiction if Indictment is presented by Court B’s Grand Jury

I. Challenging a systemic practice in Harris County

The single issue in Gutierrez v. State81 involved the propriety of a systemic practice

in Harris County. The practice is not just a matter of informal custom. It is actually

dictated by an order known as the Harris County Direct Filing Order. Specifically, the

practice is one in which the grand jury impaneled by one district court presents

indictments to a different district court. Mr. Gutierrez challenged this practice. 82 He

summarized his argument as follows:

German Gutierrez argues that the court in which he was convicted –Harris County’s 184th District Court – never had jurisdiction of his case. This is because the grand jury that indicted him was the grand jury impaneled by Harris County’s 178th District Court. The only court to which the grand jury could present its indictment was the 178th District Court. But the grand jury did not present the indictment to the 178th District Court. Rather, the grand jury presented the indictment directly to the 184th District Court.83 Under the law, the grand jury for one district court has no authority to present an indictment to a second district court. Any indictment so presented does not vest jurisdiction in the second district court (or in the first district court either).84

81 Gutierrez v. State, No. 01-18-00624-CR, 2020 WL 237935 (Tex. App. Houston [1st Dist.] Jan. 16, 2020, pet. ref’d) (mem. op., not designated for publication). 82 In other words, Mr. Gutierrez challenged Harris County’s Direct Filing System. 83 This was not a transfer situation. The grand jury did not first present the indictment to the 178th District Court which then transferred the case to the 184th District Court. 84 Brief for Appellant in Gutierrez v. State at 20. And if a court does not have jurisdiction, any order or judgment entered by that court is void.