Anthony Terrell Clifton v. the State of Texas

Opinion issued August 24, 2023

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-22-00641-CR

———————————

ANTHONY TERRELL CLIFTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Case No. 1633925

MEMORANDUM OPINION

A jury convicted Appellant Anthony Terrell Clifton of the offense of

aggravated assault of a family member and the trial court assessed his punishment

at fourteen-years’ incarceration. Appellant raises nine issues on appeal. He argues

(1) the trial court lacked jurisdiction because the grand jury did not present the

indictment to the district court that empaneled the grand jury, (2) Sections

54A.006(d) and 54A.008(a)(15) of the Texas Government Code allowing associate

judges to preside over voir dire proceedings, violate Article V, Section 7 of the Texas

Constitution, (3–4) the trial court abused its discretion by barring him from asserting

his rights under the Sixth Amendment’s Confrontation Clause based on the doctrine

of forfeiture by wrongdoing and by admitting out-of-court statements from a witness

who was not available to be cross-examined, (5) the trial court’s oral admonishments

regarding his inability to possess firearms based on a felony conviction did not

comply with the requirements of Section 176.1 of the Texas Administrative Code,

(6) the trial court improperly admonished him that, as a convicted felon, he could no

longer possess ammunition, (7) the trial court erred in assessing court costs not

authorized by statute, (8) the trial court erred by failing to inquire on the record about

his ability to pay fines and court costs, and (9) the judgment contains five

“deficiencies” that require the case be remanded to the trial court for “clarification.”

We affirm Appellant’s conviction and sentence, but we remand the case to the

trial court for a correct assessment of court costs.

Background

On June 3, 2019, Jerika Sanders (“Sanders”) called 9-1-1 for emergency

assistance after she was involved in an altercation with her boyfriend, Appellant

Anthony Terrell Clifton (“Clifton”). Sanders told the dispatcher, “My boyfriend

2

tortured me and locked me in the house and beat me up. I am bleeding. I need an

ambulance.” “He used a pole to beat me and a glass to stab me.” Sanders identified

Clifton as her assailant. The paramedics who arrived at the scene treated Sanders

and transported her to the hospital.

Sanders described the assault to the paramedics, and she made recorded

statements to Deputy Norman Fitts, an investigator with the Harris County Sheriff’s

Office, and prosecutors with the Harris County District Attorney’s Office assigned

to Clifton’s case. According to Sanders, Clifton assaulted her in their apartment for

two-and-a-half to three hours before she was able to call 9-1-1. Clifton slapped

Sanders, punched her in the face, and beat her with a belt. At one point during the

lengthy ordeal, Clifton grabbed a wine glass out of Sanders’ hand, and he struck her

face and head with the glass until it broke. Clifton then stabbed Sanders’ face and

hand with the broken wine glass. He also beat Sanders with a bathroom towel rack

and a pole he found in the apartment.

Photographs taken of Sanders after the assault show the extent of Sanders’

injuries. Sanders had dried blood on her face, forehead, and arms, puncture wounds

on her head, hands, arms, and legs, and welts on her shoulders and legs. Her left eye

3

was swollen shut and her lips were swollen. The cuts under Sanders’ left eye, upper

lip, and forehead required sutures.1

Procedural Background

The State filed a complaint alleging Clifton had committed the offense of

aggravated assault of a family member by “unlawfully, intentionally and knowingly

caus[ing] bodily injury to Jerika Sanders, hereafter styled the Complainant, a person

with whom [Clifton] had a dating relationship, by stabbing [Sanders], and [Clifton]

used and exhibited a deadly weapon, namely, the sharp end of broken wine glass

stem, during the commission of the offense.” The State filed the complaint in the

178th District Court of Harris County (the “178th Trial Court”). A grand jury,

empaneled by the 176th District Court of Harris County, returned a true bill of

indictment concerning the conduct alleged in the complaint (the “176th District

Court”). The indictment, which charged Clifton with committing the offense of

aggravated assault of a family member, was delivered to the Harris County District

Clerk and filed in the 178th Trial Court. The indictment was issued by “[t]he duly

organized Grand Jury of Harris County, Texas” and signed by the “Foreman of the

Grand Jury” for the 176th District Court. Clifton did not object to the indictment.

1

State Exhibits 14, 15, 16, 23, 24, 25, 48, 49, and 50 are photographs depicting

Sanders’ injuries.

4

Except for the grand jury proceedings in the 176th District Court, all

proceedings in Clifton’s case were conducted in the 178th Trial Court. The associate

judge of the 178th Trial Court presided over voir dire proceedings and the district

court judge of the 178th Trial Court presided over the remainder of Clifton’s trial.

On August 25, 2022, the day Clifton’s trial was scheduled to begin, the State

filed a motion requesting that the court find Clifton had “forfeited his Sixth

Amendment right to confrontation with regard to the statements of Jerika Sanders,”

based on the doctrine of forfeiture by wrongdoing.2 The State alleged that Clifton

“dissuaded [Sanders] from participating in the criminal prosecution of this case.”

The State argued, among other things:

[Clifton] repeatedly directed family members to contact [Sanders] from

jail after he was arrested in 2019 and has continued to direct family

members to contact [Sanders] to ensure she does not show up for trial

as recently as the evening of 8/24/2022.

Throughout three years since [Clifton] stabbed [Sanders], despite a no

contact order, he has continued to contact [Sanders] for the purpose of

ensuring she does not show up to trial.

While on bond, [Clifton] contacted [Sanders] and attempted to persuade

her to get back into a relationship with him.

...

2

The doctrine of forfeiture by wrongdoing bars defendants from asserting their Sixth

Amendment rights to confront their accusers or complain about hearsay when a

defendant wrongfully procures a witness’s unavailability. See Colone v. State, 573

S.W.3d 249, 264–65 (Tex. Crim. App. 2019); see also TEX. CODE CRIM. PROC. art.

38.49 (codifying doctrine of forfeiture by wrongdoing).

5

[Clifton] told his mother [Viola Clifton] to contact [Sanders] and make

sure she is not coming to court, because if she does not come, he

believes the case will be dismissed.

On August 18, 2022 [Sanders] was subpoenaed to come to court,

acknowledged the subpoena, and was cooperative.

On August 19, 2022 [Sanders] was cooperative and discussing travel

arrangements with the victim advocate coordinator.

On August 20, 2022 Prosecutors met with [Sanders] over a zoom call,

[Sanders] was cooperative, discussed courtroom attire, reviewed

photos, and shared what happened to her on June 3, 2019.

On August 21, 2022 after repeatedly telling his mother to call [Sanders]

to make sure she was not coming to court, [Clifton’s] mother reported

that she told [Sanders] she did not have to come, and bribed [Sanders]

with 2,000 dollars of baby clothes.

As of August 22, 2022 [Sanders] did not respond to the State again.

August 24, 2022 [Clifton’s] mother affirms that [Sanders] received the

2,000 dollars of baby clothes, and that [Sanders] is not coming to trial.

[Sanders] said she fears [Clifton’s] family. [Sanders] knows of the court

setting, but she refuses to testify.

The State requested a hearing on its motion and asked the court to “admit through

the doctrine of forfeiture by wrongdoing” (1) Sanders’ “statement to detectives at

the hospital,” (2) Sanders’ “statement in a witness meeting on 8/20/22,” and (3) “Jail

calls made” by Clifton.

The trial court conducted an Article 38.49 hearing outside the jury’s presence

to determine whether the forfeiture by wrongdoing doctrine applied to Sanders’ out-

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of-court statements rendering them admissible.3 At the hearing, the State offered as

evidence recordings of several phone calls Clifton made from jail, as well as a

transcript of relevant sections of the calls. The State also called four witnesses:

Sergeant Mark Schmidt, Investigator Bilsen Espinosa, Deputy Norman Fitts, and

Caseworker Maria Bahena.4

Based on Clifton’s phone calls and evidence that Sanders had been

cooperative with the State until Clifton’s mother bribed her with $2,000 worth of

baby clothes to not testify at Clifton’s trial, the trial court found by a preponderance

of the evidence that Clifton acted with the intent to procure Sanders’ absence at trial,

and he thus forfeited his Sixth Amendment right to confront Sanders or object to the

admission of Sanders’ out-of-court statements as hearsay.

Clifton’s trial began the next day. Clifton pleaded not guilty. When Sanders

failed to appear for trial, the State admitted several of her out-of-court statements,

including a report prepared by the Community Volunteer Fire Department

containing statements Sanders gave to a paramedic describing the assault (State

3

Article 38.49(c) requires the trial court to conduct a hearing outside of the jury’s

presence to determine “whether forfeiture by wrongdoing occurred by a

preponderance of the evidence.” TEX. CODE CRIM. PROC. art. 38.49(c).

4

We address the evidence and testimony presented at the hearing in more detail later

in this opinion.

7

Exhibit 55), and Sanders’ hospital records containing statements she made

describing the assault and identifying Clifton as her assailant (State Exhibit 56).5

The jury convicted Clifton of the offense of aggravated assault of a family

member. The trial court assessed his punishment at fourteen-years’ incarceration.

This appeal followed.

Trial Court’s Jurisdiction

In his first issue, Clifton argues that the judgment of conviction is void

because the 178th Trial Court never acquired jurisdiction over his case. According

to Clifton, Article 21.02(2) of the Texas Code of Criminal Procedure requires a grand

jury to present its indictment to the same district court that empaneled the grand jury.

See TEX. CODE CRIM. PROC. art. 21.02(2). Clifton argues that the grand jury failed

to comply with Article 21.02(2) because, instead of presenting the indictment against

Clifton to the 176th District Court—the court that empaneled the grand jury—the

grand jury presented the indictment to the 178th Trial Court. According to Clifton,

the grand jury’s failure to comply with Article 21.02(2) renders the indictment

against him a nullity. Thus, he argues it could not have conferred jurisdiction upon

any court.

5

The trial court also admitted four of Clifton’s jail calls as State Exhibit 57. State

Exhibit 57 includes the January 24, 2022 call (State Exhibit 4), the January 26, 2022

call (State Exhibit 4), the August 19, 2022 call (State Exhibit 5), and the August 21,

2022 call (State Exhibit 6).

8

The State argues that Clifton’s argument has been rejected multiple times by

this Court and the Fourteenth Court of Appeals. See Allen v. State, 570 S.W.3d 795,

799–802 (Tex. App.—Houston [1st Dist.] 2018), aff’d, 614 S.W.3d 736 (Tex. Crim.

App. 2019); Johnson v. State, 562 S.W.3d 168, 172–74 (Tex. App.—Houston [14th

Dist.] 2018, pet. ref’d). Relying on Allen v. State from this Court and Johnson v.

State from our sister court, the State argues the grand jury satisfied the presentment

requirement in Article 21.02(2) because it presented the indictment to the Harris

County District Clerk, the court clerk for all Harris County district courts.

In his reply brief, Clifton argues that (1) presentment of an indictment to a

district clerk does not satisfy the requirement in Article 21.02(2) that the indictment

be presented to the district court that empaneled the grand jury, (2) there is no

evidence the indictment was presented to the empaneling court as required by Article

21.02(2), (3) the presentment of an indictment to one district court does not vest

jurisdiction in all district courts in the same county, and (4) Allen and Johnson are

inapposite because they do not address the requirement in Article 21.02(2) that an

indictment must be “presented in the district court of the county where the grand

jury is in session” and both opinions are inconsistent with the requirements in Article

21.02(2).

9

A. Standard of Review

A defendant may challenge the trial court’s jurisdiction for the first time on

appeal. See State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009). “A trial

court’s jurisdiction over a criminal case consists of the power of the court over the

‘subject matter’ of the case, coupled with ‘personal’ jurisdiction over the accused.”

Jenkins v. State, 592 S.W.3d 894, 898 (Tex. Crim. App. 2018) (quoting Dunbar, 297

S.W.3d at 780). “The presentment of a valid indictment vests the district court with

jurisdiction of the cause.” Id. (citing TEX. CONST. art. V, § 12(b)). Whether an

indictment is sufficient to confer jurisdiction presents a question of law, which we

determine de novo. Leone v. State, 508 S.W.3d 346, 347 (Tex. App.—Fort Worth

2014, pet. ref’d).

A void judgment in a criminal case is a “nullity” and that may be attacked at

any time. Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001). Void

judgments, which are “very rare,” occur when, among other things, the indictment

“does not satisfy the constitutional requisites of a charging instrument,” and thus

deprives the trial court of jurisdiction over the defendant. Id. at 668. Whether a

judgment is void is a question of law, which we determine de novo. See BMC

Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

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B. Applicable Law

Article 5, Section 12(b) of the Texas Constitution states:

An indictment is a written instrument presented to a court by a grand

jury charging a person with the commission of an offense. An

information is a written instrument presented to a court by an attorney

for the State charging a person with the commission of an offense. The

practice and procedures relating to the use of indictments and

informations, including their contents, amendment, sufficiency, and

requisites, are as provided by law. The presentment of an indictment

or information to a court invests the court with jurisdiction of the cause.

TEX. CONST. art. V, § 12(b). A defective indictment may still vest a court with

jurisdiction so long as the indictment meets the constitutional definition of an

indictment. Jenkins, 592 S.W.3d at 898. A written document meets the definition

of indictment under the Texas Constitution if it charges a person with the

commission of an offense. Id. (“To meet the definition of indictment under article

V, section 12(b) of the Texas Constitution and to vest the court with both personal

and subject matter jurisdiction, the indictment must (1) charge a person, and it must

(2) charge the commission of an offense.”); see also TEX. CONST. art. V, § 12(b)

(“An indictment is a written instrument presented to a court by a grand jury charging

a person with the commission of an offense.”).

Article 21.02 of the Texas Code of Criminal Procedure sets forth the legal

requirements for an indictment. TEX. CODE CRIM. PROC. art. 21.02. It states that

“[a]n indictment shall be deemed sufficient” if it meets nine listed requisites. Id.

Under requisite number 2, “[i]t must appear that the [indictment] was presented in

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the district court of the county where the grand jury is in session.” Id. 21.02(2). A

grand jury presents an indictment to a court by “deliver[ing] the indictment to the

judge or court clerk.” TEX. CODE CRIM. PROC. art. 20A.303.

C. Presentment of Indictments in Harris County

The Texas Code of Criminal Procedure governs grand jury proceedings in

Texas. See Allen, 570 S.W.3d at 799; see also TEX. CODE CRIM. PROC. arts.

20A.001–.304. A district court forms and impanels a grand jury and empowers it to

inquire into indictable offenses. See Allen, 570 S.W.3d at 799; TEX. CODE CRIM.

PROC. art. 20A.051 (“The grand jury shall inquire into all offenses subject to

indictment of which any grand juror may have knowledge or of which the grand jury

is informed by the attorney representing the state or by any other credible person.”).

After hearing testimony, the grand jury votes on the presentment of an

indictment and if “at least nine grand jurors concur in finding the bill,” the State will

prepare the indictment and deliver it to the grand jury foreman. See TEX. CODE

CRIM. PROC. arts. 20A.301–.302; Allen, 570 S.W.3d at 799. “When an indictment

is ready to be presented, the grand jury shall, through the foreperson, deliver the

indictment to the judge or court clerk.” TEX. CODE CRIM. PROC. art. 20A.303. An

indictment is considered presented “when it has been duly acted upon by the grand

jury and received by the court.” Id. art. 12.06. Presentment occurs “when an

indictment is delivered to either the judge or the clerk of the court.” Allen, 570

12

S.W.3d at 799. “The presentment of a valid indictment vests the district court with

jurisdiction of the cause.” Jenkins, 592 S.W.3d at 898 (citing TEX. CONST. art. V, §

12(b)).

Criminal district courts within the same county have original jurisdiction over

all felony criminal cases in that county. See Allen, 570 S.W.3d at 800; see also TEX.

CODE CRIM. PROC. art. 4.05; TEX. GOV’T CODE § 74.094. In Harris County, Texas,

the criminal district courts share the same clerk. Allen, 570 S.W.3d at 800;

Henderson v. State, 526 S.W.3d 818, 820 (Tex. App.—Houston [1st Dist.] 2017,

pet. ref’d).

Article V, Section 11 of the Texas Constitution states in part that “District

Judges may exchange districts, or hold courts for each other when they may deem it

expedient, and shall do so when required by law.” TEX. CONST. art. V, § 11; see

generally In re State ex rel. Wice, 668 S.W.3d 662, 675 (Tex. Crim. App. 2023)

(reaffirming that this broad grant of authority bestows flexibility upon district court

judges). It is well-settled that Article V, Section 11, and the sections of the Texas

Government Code that accomplish its constitutional directive, give district court

judges in multicourt counties, including Harris County, flexibility to adopt local

rules governing the courts’ administration of cases. See TEX. GOV’T CODE § 24.024

(stating district courts “may adopt rules governing the filing and numbering of cases,

the assignment of cases for trial, and the distribution of the work of the courts as in

13

their discretion they consider necessary or desirable for the orderly dispatch of the

business of the courts”); TEX. GOV’T CODE § 74.093(a)–(b)(1) (requiring district

court judges in multicourt counties to adopt local rules of administration governing

“assignment, docketing, transfer, and hearing of all cases, subject to jurisdictional

limitations of the district courts and statutory county courts”); see also Davis v. State,

519 S.W.3d 251, 255 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (citing TEX.

CONST. art. V, § 11; TEX. GOV’T CODE §§ 24.003, 24.024, 74.093–094) (observing

grant of “intra-county flexibility” to district court judges in multicourt counties).6

Thus, in multicourt counties, like Harris County, a case may be assigned to a district

court other than the court that empaneled the grand jury, pursuant to local rules. See

Allen, 570 S.W.3d at 800; see also Davis, 519 S.W.3d at 255 (“If a grand jury in one

district court returns an indictment in a case, the case nevertheless may be then

assigned to any district court within the same county.”); Tamez v. State, 27 S.W.3d

668, 670 n.1 (Tex. App.—Waco 2000, pet. ref’d) (noting that “the judges of the

Harris County district courts exercising criminal jurisdiction have adopted a

procedure by which indictments are filed in each court on a rotating basis without

reference to the court which empaneled the grand jury presenting the indictments”).

6

Clifton is not challenging Texas Government Code Sections 24.003, 24.024, 74.093,

or 74.094.

14

D. Analysis

Clifton argues that his judgment of conviction is void because the grand jury

presented the indictment against him to the 178th Trial Court, instead of the

empaneling 176th District Court in violation of Article 21.02(2). According to

Clifton, Article V, Section 12(b) of the Texas Constitution incorporates by reference

all “current statutes concerning indictments and informations,” including Article

21.02(2) of the Texas Code of Criminal Procedure, and thus the requirements of

Article 21.02(2) are constitutional in nature, not statutory. Clifton argues that an

indictment that runs afoul of Article 21.02 is a nullity that cannot vest jurisdiction in

any court. And because this is a jurisdictional issue, he may raise the issue for the

first time on appeal. See Dunbar, 297 S.W.3d at 780.7

In Allen, Johnson, and at least a dozen other opinions relied upon or cited by

the State, this Court and the Fourteenth Court of Appeals consistently have held that

a criminal district court in Harris County is not deprived of jurisdiction over a

defendant when it receives presentment of an indictment from a grand jury

impaneled by another criminal district court in the same county. The same opinions

hold that the same arguments Clifton raises in his first issue are non-jurisdictional

procedural challenges to irregularities that a defendant may not raise for the first

7

Clifton concedes he is not arguing there is a procedural deficiency with the

indictment.

15

time on appeal. See Allen, 570 S.W.3d at 801 (rejecting argument trial court lacked

jurisdiction because indictment was presented by grand jury empaneled by different

Harris County criminal district court and holding defendant’s arguments “raise[d] a

procedural issue related to his indictment”); Johnson, 562 S.W.3d at 174 (rejecting

argument trial court lacked jurisdiction over his case because grand jury impaneled

by different district court presented indictment to trial court, and holding that “[a]t

best, appellant’s arguments present a non-jurisdictional, procedural issue related to

appellant’s indictment”); see generally Tamez, 27 S.W.3d at 671 (“Settled case law

establishes that a defendant may not complain for the first time on appeal that he has

been tried and convicted in a court other than the one to which the indictment was

returned.”).8

8

Although the State relies primarily on Allen, we have reached the same result in

several other opinions. See Henderson v. State, 526 S.W.3d 818, 819–21 (Tex.

App.—Houston [1st Dist.] 2017, pet. ref’d) (rejecting argument trial court never

acquired jurisdiction over Henderson because grand jury from another Harris

County district court presented indictment to trial court and holding there was no

jurisdictional defect because indictment charged “a person” with commission of

offense and there was evidence indictment was presented to Harris County District

Clerk and trial court); Davis v. State, 519 S.W.3d 251, 254 (Tex. App.—Houston

[1st Dist.] 2017, pet. ref’d) (rejecting argument trial court lacked jurisdiction over

defendant, and thus judgment of conviction was void, because grand jury of

different Harris County district court presented indictment to trial court, instead of

court that empaneled grand jury); see also Gutierrez v. State, No. 01-18-00624-CR,

2020 WL 237935, at *1–3 (Tex. App.—Houston [1st Dist.] Jan. 16, 2020, pet. ref’d)

(mem. op., not designated for publication) (holding trial court had jurisdiction over

defendant when “underlying indictment was presented to the district clerk by the

grand jury empaneled by the 178th District Court of Harris County, Texas” and

rejecting argument that “text of the Texas Constitution and Texas Code of Criminal

16

Procedure contemplate that grand juries may return indictments only to the court

that impaneled them”); Payne v. State, No. 01-16-00977-CR, 2018 WL 4190047, at

*3 (Tex. App.—Houston [1st Dist.] Aug. 31, 2018, pet. ref’d) (mem. op., not

designated for publication) (relying on Henderson and Davis and overruling

argument trial court lacked jurisdiction because grand jury of different Harris

County district court presented indictment to trial court because “relevant facts of

this case do not differ materially from the relevant facts in Henderson and Davis”);

Shepherd v. State, No. 01-16-00748-CR, 2017 WL 2813165, at *1 (Tex. App.—

Houston [1st Dist.] June 29, 2017, pet. ref’d) (mem. op., not designated for

publication) (holding argument trial court was not vested with jurisdiction because

grand jury of another district court in Harris County presented indictment was “not

a jurisdictional matter, Appellant’s failure to challenge the indictment or the

proceedings in the trial court constitutes a waiver of his right to challenge any

procedural irregularity”); Hernandez v. State, No. 01-15-00837-CR, 2017 WL

1416877, at *2 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, pet. ref’d) (mem.

op., not designated for publication) (holding argument trial court lacked jurisdiction

because grand jury of different Harris County district court presented indictment

could not be raised for first time on appeal and “Hernandez’s failure to challenge

the indictment or the proceedings in the 263rd District Court prior to trial constitutes

a waiver of his right to challenge any procedural irregularity”).

Although Johnson is the primary authority the States cites from the

Fourteenth Court of Appeals, that court too reached the same result in several other

opinions. See Saldivar v. State, 542 S.W.3d 43, 46 (Tex. App.—Houston [14th

Dist.] 2017, pet. ref’d) (rejecting argument trial court lacked jurisdiction to

adjudicate appellant’s case because indictment was returned from grand jury

impaneled by different district court and holding trial court was vested with

jurisdiction when indictment returned by grand jury in different Harris County

district court was presented to Harris County District Clerk and filed with trial

court); Matthews v. State, 530 S.W.3d 744, 746–47 (Tex. App.—Houston [14th

Dist.] 2017, pet. ref’d) (holding no jurisdictional defect because indictment was

“written instrument presented to a court by a grand jury charging a person with the

commission of an offense” and trial court was vested with jurisdiction after being

presented with indictment returned by grand jury in different Harris County district

court and filed with Harris County District Clerk); see also Rodriguez v. State, No.

14-16-00968-CR, 2018 WL 542239, at *2 (Tex. App.—Houston [14th Dist.] Jan.

25, 2018, no pet.) (mem. op., not designated for publication) (holding trial court had

jurisdiction because indictment from different Harris County district court was

presented to Harris County District Clerk and filed in trial court); Quoc Nguyen v.

State, No. 14-17-00090-CR, 2017 WL 6329881, at *1 (Tex. App.—Houston [14th

Dist.] Dec. 12, 2017, pet. ref’d) (mem. op., not designated for publication) (holding

trial court was vested with jurisdiction when indictment presented to Harris County

17

In Allen, the defendant argued the trial court lacked jurisdiction over his

criminal case because the indictment was presented to the trial court by a grand jury

empaneled by a different Harris County criminal district court. Allen, 570 S.W.3d

at 799. According to the defendant, “a grand jury impaneled by one trial court cannot

present an indictment to a different trial court because a grand jury serves one

particular court.” Id. at 801. Rejecting this argument, this Court explained that

district court judges in multicourt counties, like Harris County, are allowed to adopt

local rules governing “the assignment of cases for trial” and “distribution of the work

of the courts.” Id. at 800 (quoting TEX. GOV’T CODE § 24.024); see also TEX. GOV’T

CODE § 74.093 (stating local rules of administration may provide, in part, for

assignment, docketing, transfer, and hearing of cases). Thus, in multicourt counties,

“one court may impanel a grand jury, and if an indictment is presented, the case may

District Clerk and trial court and empaneling court were Harris County district

courts and “overrul[ing] for the reasons stated in Saldivar and Matthews”); Conway

v. State, No. 14-17-00060-CR, 2017 WL 5472642, at *1–2 (Tex. App.—Houston

[14th Dist.] Nov. 14, 2017, no pet.) (mem. op., not designated for publication)

(holding no jurisdictional defect when indictment returned by grand jury for

different Harris County district court was presented to Harris County District Clerk

and filed with trial court); Aguillon v. State, No. 14-17-00002-CR, 2017 WL

3045797, at *1–3 (Tex. App.—Houston [14th Dist.] July 18, 2017, pet. ref’d)

(holding trial court had jurisdiction over defendant’s case when amended indictment

of grand jury from different court was presented to District Clerk and “refile[d]” in

trial court, which had “first-filed related case;” stating “indictment’s return to [trial

court] conferred that court’s jurisdiction over the indictment, since all state district

courts located within one county have proper jurisdiction to decide the same cases;”

rejecting argument trial court was divested of jurisdiction when presented with

indictment prepared by grand jury impaneled by different district court; holding

record failed to demonstrate jurisdiction defect).

18

be filed in another court of competent jurisdiction within the same county.” Allen,

570 S.W.3d at 800.

The Allen court similarly held that the trial court “was properly vested with

jurisdiction over Allen.” Id. at 801. In support of its holding, this Court observed

that the trial court and empaneling court were both Harris County criminal district

courts, and thus both courts had the same subject matter jurisdiction and the same

district clerk. Id. at 800. This Court also relied on that the fact the State filed the

complaint against Allen in the trial court, the empaneling court’s grand jury

“returned a true bill of indictment concerning” the conduct alleged in the complaint,

the “indictment was presented to the Harris County District Clerk, as demonstrated

by the clerk’s original file stamp,” and it was filed in the trial court. Id.; see also

Shepherd v. State, No. 01-16-00748-CR, 2017 WL 2813165, at *1 (Tex. App.—

Houston [1st Dist.] June 29, 2017, pet. ref’d) (mem. op., not designated for

publication) (“After the grand jury votes concerning presentment of an indictment,

the State can file in any court that has jurisdiction over the case.”); TEX. CODE CRIM.

PROC. art. 4.16 (“When two or more courts have concurrent jurisdiction of any

criminal offense, the court in which an indictment or a complaint shall first be filed

shall retain jurisdiction . . . .”). This Court held the evidence “the grand jury foreman

signed the indictment, the trial court directed the State to read the indictment to Allen

in open court pretrial, and [the trial court] accepted Allen’s plea of ‘not guilty,’” was

19

“additional evidence that the indictment was acted upon by the grand jury and

presented to, or received by,” the trial court. Allen, 570 S.W.3d at 801; see also TEX.

CODE CRIM. PROC. art. 12.06 (stating presentment occurs when indictment “has been

duly acted upon by the grand jury and received by the court”).

The Allen court further held that the defendant’s argument that “a grand jury

impaneled by one trial court cannot present an indictment to a different trial court

because a grand jury serves one particular court,” had been “expressly rejected” by

this Court “on at least four previous occasions” and by the Fourteenth Court of

Appeals. Allen, 570 S.W.3d at 801 (citing Henderson, 526 S.W.3d at 819–21;

Shepherd, 2017 WL 2813165, at *1; Hernandez v. State, No. 01-15-00837-CR, 2017

WL 1416877, at *2 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, pet. ref’d) (mem.

op., not designated for publication); and Davis, 519 S.W.3d at 254–56). “We have

repeatedly held that a trial court is not deprived of jurisdiction over a criminal

defendant in these circumstances.” Id.

The Allen court also observed that the defendant’s arguments “raise[d] a

procedural issue related to his indictment,” and the defendant’s “failure to object to

the indictment or the proceedings in the trial court . . . waive[d] . . . his right to

challenge any procedural irregularity related to his indictment on appeal.” Id. at

801–02 (citing Henderson, 526 S.W.3d at 821; Shepherd, 2017 WL 2813165, at *1;

Hernandez, 2017 WL 1416877, at *2; Davis, 519 S.W.3d at 254–56). Although this

20

Court in Allen did not explicitly state the nature of the procedural issue, the authority

relied upon indicates the procedural issue involved a challenge to the transfer of

criminal cases between the district courts of Harris County. See Henderson, 526

S.W.3d at 821 (“The fact that appellant was indicted by a grand jury impaneled by

one court and tried in another court without a motion to transfer the case to the trial

court is, at best, a procedural issue.”); Hernandez, 2017 WL 1416877, at *2 (holding

argument “grand jury serves a particular court, not a particular county, and therefore,

when the 184th District Court’s grand jury presented the indictment, it did not vest

jurisdiction over the case in the 263rd District Court” amounted to procedural

challenge to transfer of case with Harris County that was waived unless raised before

trial); Davis, 519 S.W.3d at 256 (holding “[a]ny procedural challenge to the transfer

of a case within a county is thus determined and resolved by proper application of

local rule promulgated pursuant to constitutional and statutory authority; it is not a

jurisdictional defect”); see also Shepherd, 2017 WL 2813165, at *1 (“Because this

is not a jurisdictional matter, Appellant’s failure to challenge the indictment or the

proceedings in the trial court constitutes a waiver of his right to challenge any

procedural irregularity.”).9

9

See also Mosley v. State, 354 S.W.2d 391, 393–94 (Tex. Crim. App. 1962) (rejecting

“jurisdictional” challenge where defendant was tried and convicted in district court

other than one that empaneled grand jury even though record contained no transfer

order); Tamez v. State, 27 S.W.3d 668, 671 (Tex. App.—Waco 2000, pet. ref’d)

21

The State filed the complaint against Clifton in the 178th Trial Court, alleging

Clifton had committed the offense of aggravated assault of a family member. A

grand jury, empaneled by the 176th District Court, returned a true bill of indicment.

The indictment against Clifton was delivered, or presented, to the Harris County

District Clerk, as demonstrated by the clerk’s office’s original file stamp, and it was

filed in the county’s 178th Trial Court. See Allen, 570 S.W.3d at 800–01; see also

TEX. CODE CRIM. PROC. art. 20A.303 (“When an indictment is ready to be presented,

the grand jury shall, through the foreperson, deliver the indictment to the judge or

court clerk.”). The record reflects that the indictment was “presented” to, or received

by, the judge of the 178th Trial Court and acted upon by the grand jury because the

grand jury foreman signed the indictment, and the judge of the 178th Trial Court

directed the State to read the indictment to Clifton in open court prior to trial and

accepted Clifton’s not guilty plea. See TEX. CODE CRIM. PROC. art. 12.06 (“An

indictment is considered as ‘presented’ when it has been duly acted upon by the

grand jury and received by the court.”); Allen, 570 S.W.3d at 800–01; Henderson,

526 S.W.3d at 820 (“Logically, appellant’s arraignment in the present case could not

(holding argument trial court’s judgment was void because grand jury empaneled

by different Harris County district court presented indictment “concerns a

procedural irregularity which he should have raised in a pre-trial motion before he

pleaded guilty to the allegations of that indictment”).

22

have occurred in the 177th District Court if the trial court had not actually received

the indictment.”).

The indictment meets the constitutional definition of an indictment because it

charged (1) Clifton, a person (2) with the commission of the offense of aggravated

assault of a family member. See TEX. CONST. art. V, § 12(b); see Jenkins, 592

S.W.3d at 898 (“To meet the definition of indictment under article V, section 12(b)

of the Texas Constitution and to vest the court with both personal and subject matter

jurisdiction, the indictment must (1) charge a person, and it must (2) charge the

commission of an offense.”).

The record thus reflects that the indictment was presented to the 178th Trial

Court thereby vesting the court with jurisdiction over Clifton. See Jenkins, 592

S.W.3d at 898 (citing TEX. CONST. art. V, § 12(b)) (“The presentment of a valid

indictment vests the district court with jurisdiction of the cause.”); see also Allen,

570 S.W.3d at 801; TEX. CODE CRIM. PROC. art. 4.05 (“District courts and criminal

district courts shall have original jurisdiction in criminal cases of the grade of

felony. . .”). We thus hold there is no jurisdictional defect in the indictment. See

Henderson, 526 S.W.3d at 820–21 (holding no jurisdictional defect because

indictment charged “a person” with commission of offense and there was evidence

indictment was presented to Harris County District Clerk and trial court). Moreover,

because Clifton’s argument challenges, at most, a procedural defect, he was required

23

to preserve this issue in the trial court by raising the issue before trial. Clifton did

not do so. He thus waived his first issue. See Allen, 570 S.W.3d at 800–01.

Clifton argues that Allen is inapposite because it does not address the

mandatory requirement in Article 21.02(2) that an indictment be “presented in the

district court of the county where the grand jury is in session.” Although we have

not addressed whether a violation of Article 21.02 constitutes a jurisdictional defect,

the Texas Court of Criminal Appeals held in Jenkins v. State that the failure to

comply with Article 21.02 does not deprive a court of jurisdiction. See Jenkins, 592

S.W.3d at 902 (“We conclude, therefore, that, although defective under article 21.02,

the indictment nevertheless (1) charges a person (2) with committing an offense, and

thus vested the trial court with both personal and subject-matter jurisdiction.”).

In Jenkins, the defendant argued the trial court lacked jurisdiction over him

because his name did not appear in the indictment, and therefore, the indictment did

not charge “a person” with an offense and was void. See id. at 898. The defendant,

who acknowledged that his name was included in the document’s caption, argued

that the caption was not part of the indictment, and thus, the indictment against him

did not charge him or any “person” with an offense. See id. at 900. The court of

appeals agreed, relying in part on Article 21.02(4). See id.; TEX. CODE CRIM. PROC.

art. 21.02(4) (stating sufficient indictment “must contain the name of the accused”).

24

The Court of Criminal Appeals disagreed with the court of appeals and held

that while the indictment was defective because it did not “contain the name of the

accused,” as required by Article 21.02(4), the defect did not render the indictment

void. See Jenkins, 592 S.W.3d at 901 (“Because article 21.02 sets out what is

required to make the indictment “sufficient,” if an indictment does not comply with

article 21.02, it is considered to be defective.”).

The Court stated:

It has been well-settled since 1985 that a defect in an indictment may

not prevent it from qualifying as an indictment. An indictment can be

defective, but still be an indictment that vests the court with jurisdiction.

In fact, in Duron v. State, this Court held that in order for a defect to

“render the instrument a non-indictment,” the defect must “make it

impossible for the defendant to know with what offense he had been

charged.”

Id. The Court further held that an indictment’s failure to comply with Article 21.02

amounts to a defect in form that must be raised before the first day of trial or else the

issue is waived. See id. at 902 (“If a defendant does not object to a defect, error, or

irregularity of form or substance in an indictment before the date on which the trial

on the merits commences, he waives and forfeits the right to object to the defect,

error, or irregularity and he may not raise the objection on appeal or in any other

post-conviction proceeding.”).

Clifton objected to the indictment based on the alleged failure of the grand

jury to comply with Article 21.02(2) for the first time on appeal. He thus waived the

25

issue. See id. at 901–02. And even if he had not waived the issue, Clifton would

not prevail on appeal because the requirements of Article 21.02(2) were satisfied

when the grand jury presented the indictment to the 178th Trial Court. Article 21.02,

which sets forth the requirements for a sufficient indictment, states: “An indictment

shall be deemed sufficient if it has the following [nine] requisites,” including that

“[i]t must appear that the [indictment] was presented in the district court of the

county where the grand jury is in session.” TEX. CODE CRIM. PROC. art. 21.02(2).

Clifton argues that Article 21.02(2) requires the grand jury “to present the indictment

in the [same] district court where the grand jury is in session.” The plain language

of Article 21.02(2), however, requires that an indictment be “presented in the district

court of the county where the grand jury is in session.” Id. (emphasis added). The

176th District Court and the 178th Trial Court are both district courts of Harris

County, the county where the grand jury was in session, and thus the presentment of

the indictment to either court satisfies the requirement of Article 21.02(2) that an

indictment be “presented in the district court of the county where the grand jury is

in session.” Id.

We overrule Clifton’s first issue.

Sections 54A.006(d) and 54A.008(a)(15) of the Texas Government Code

In his second issue, Clifton argues “that the statutory authority bestowed upon

associate judges by the Legislature [in Sections 54A.006(d) and 54A.008(a)(15) of

26

the Texas Government Code] violates Article V, Section 7 of the Texas

Constitution.” According to Clifton, Article V, Section 7 of the Texas Constitution

prohibits associate judges “from handling voir dire in this case or in any other case”

and thus, “a conviction arising from any jury trial in which voir dire was conducted

by an associate judge is void.”10

A. Applicable Law

Texas district courts derive their “judicial power” from Article V of the Texas

Constitution. TEX. CONST. art. V, § 1 (“The judicial power of this State shall be

vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of

Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts

of Justices of the Peace, and in such other courts as may be provided by law.”); TEX.

CONST. art. V, § 8 (granting district courts jurisdiction). Among other things, Article

V, Section 7 requires that the state be divided into judicial districts which will be

10

Clifton also argues that “the practice violates his guarantee to a jury trial as

explicated in Article I, Section 10,” because “[i]t seems obvious that a

constitutionally guaranteed jury trial must be presided over by an appropriate

judicial officer.” See TEX. CONST. art. I, § 10 (“In all criminal prosecutions the

accused shall hav[e] a speedy public trial by an impartial jury.”). Clifton, who does

not dispute that he received a “speedy public trial by an impartial jury,” does not

cite to any authority for the proposition that a defendant is deprived of his right to a

“speedy public trial by an impartial jury” when he receives a trial that meets the

requirements of Article I, Section 10, but the trial is nevertheless defective because

it violates a separate constitutional requirement.

27

presided over by duly elected judges, and it sets forth the eligibility requirements for

such district court judges. Article V, Section 7 states:

(a) The State shall be divided into judicial districts, with each district

having one or more Judges as may be provided by law or by this

Constitution.

(b) Each district judge shall be elected by the qualified voters at a

General Election. To be eligible for appointment or election as a

district judge, a person must:

(1) be a citizen of the United States and a resident of this State;

(2) be licensed to practice law in this State;

(3) have been a practicing lawyer or a Judge of a Court in this

State, or both combined, for eight years next preceding the

judge’s election, during which time the judge’s license to

practice law has not been revoked, suspended, or subject

to a probated suspension;

(4) have resided in the district in which the judge was elected

for two years next preceding the election; and

(5) reside in the district during the judge’s term of office.

(c) A district judge shall hold the office for the term of four years

and shall receive for the judge’s services an annual salary to be

fixed by the Legislature.

(d) A District Court shall conduct its proceedings at the county seat

of the county in which the case is pending, except as otherwise

provided by law. The Court shall hold the regular terms at the

County Seat of each County in the Court's district in such manner

as may be prescribed by law. The Legislature shall have power

by General or Special Laws to make such provisions concerning

the terms or sessions of each District Court as it may deem

necessary.

28

(e) The Legislature shall also provide for the holding of District

Court when the Judge thereof is absent, or is from any cause

disabled or disqualified from presiding.

TEX. CONST. art. V, § 7.

The Texas Legislature may enact any laws not expressly or inferentially

prohibited by the Texas Constitution or the United States Constitution. See Jones v.

Williams, 45 S.W.2d 130, 137 (Tex. 1931) ( “Legislature can enact all laws not

prohibited by the Constitution, either in express terms or by necessary

implication.”); see also Brown v. City of Galveston, 75 S.W. 488, 496 (Tex. 1903)

(noting “the well-settled principle of constitutional construction that the power of

the Legislature can be restrained only by a prohibition expressed or implied from

some provision or provisions of the Constitution itself”). Section 54A.006(d) of the

Texas Government Code states: “An associate judge may select a jury. Except as

provided in Subsection (b), an associate judge may not preside over a trial on the

merits, whether or not the trial is before a jury.” TEX. GOV’T CODE § 54A.006(d).

Section 54A.008(a)(15) of the Texas Government Code states: “Except as limited

by an order of referral, an associate judge to whom a case is referred may . . . select

a jury.” Id. § 54A.008(a)(15).

B. Preservation

Clifton cites to Morrow v. Corbin, 62 S.W.2d 641, 644 (Tex. 1933), for the

proposition that a district court’s jurisdiction “embraces the power to hear and

29

determine the matter in controversy.” Id. (internal quotation marks omitted). Clifton

argues that “the judicial power exercised by district courts includes the power to

‘hear’ cases.” He posits that because an “elected district judge presides over the

district court[,] it is the district judge who ‘hears’ cases over which the district court

has jurisdiction.” He argues that because conducting voir dire is an integral part of

hearing a case, “only district judges may hear cases.” Clifton thus concludes that

“associate judges may not conduct voir dire” and a “conviction arising from any jury

trial in which voir dire was conducted by an associate judge is void.”

Citing to Davis v. State, 956 S.W.2d 555 (Tex. Crim. App. 1997), the State

responds that “a complaint about the authority of an individual to act as judge” is

not a challenge to the court’s jurisdiction and thus it cannot be raised for the first

time on appeal “unless the complaint goes to [the individual’s] constitutional

disqualifications.” The State argues that Clifton waived his challenge to the

associate judge’s authority to conduct voir dire because he is not challenging the

qualifications of the associate judge. The State further contends that even if Clifton

had preserved this issue for review, he would not prevail because the Texas

Constitution does not give elected district court judges the exclusive authority to

preside over a district court and “Texas case law is replete with examples of people

other than the elected district judge presiding over a case.”

30

Clifton acknowledges that while a challenge to the “power of the person

presiding over a court is not jurisdictional” and cannot be challenged for the first

time on appeal, he clarifies that he is “not making a jurisdictional argument.”

“Rather, [Clifton] is arguing that the statutory authority bestowed upon associate

judges by the Legislature violates Article V, Section 7 of the Texas Constitution.”11

Clifton further argues that the State’s reliance on Davis is misplaced because while

Davis states that only a challenge to a judge’s constitutional qualifications may be

raised for the first time on appeal, Davis also recognizes that “judicial functions

performed by one without any authority to act” may be either void or voidable. See

Davis, 956 S.W.2d at 559.

In Davis, the Court explained:

While our case law has called the authority of the judge to preside a

jurisdictional issue, we now disavow that characterization, because as

we have explained, jurisdiction or judicial power is vested in courts, not

individuals. This is not to say that judicial functions performed by one

without any authority to act may not be void. For example, if the trial

judge is related to a party by affinity or consanguinity or had formerly

prosecuted the same case he now presides over, he is constitutionally

11

A defendant may not challenge the constitutionality of a statute for the first time on

appeal. See Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014)

(holding “[a]s applied” constitutional challenges must be preserved by objection or

complaint to trial court); Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.

2009) (“[A] defendant may not raise for the first time on appeal a facial challenge

to the constitutionality of a statute.”). Clifton did not challenge the constitutionality

of Sections 54A.006(d) and 54A.008(a)(15) of the Texas Government Code in the

trial court. To the extent his brief can be construed as a challenge the

constitutionality of these statutes on appeal, neither constitutional challenge was

preserved for appellate review, and thus Clifton waived these issues.

31

disqualified under Article V, Section 11. See Ex parte Vivier, 699

S.W.2d 862 (Tex. Cr[im]. App. 1985); Ex parte Washington, 442

S.W.2d 391 (Tex. Cr[im]. App. 1969). In French v. State, 572 S.W.2d

934 (Tex. Cr[im]. App. 1978) (on second motion for rehearing), a

temporary appointed municipal judge’s actions were held void because

he had not taken the oath of office as required for elected judges and

appointed officers by Article XVI, Section 1, Texas Constitution.12

Therefore, as opposed to being disqualified from acting in a particular

case, the special judge in French was not qualified because he had not

taken the constitutionally required oath. See also Herrod v. State, 650

S.W.2d 814 (Tex. Cr[im]. App. 1983) (retired judge was not authorized

to preside because record failed to show: an order of assignment from

the administrative judge, that the duly elected judge was disabled, and

that the retired judge had executed the bond and taken the oath of

office). But see Buchanan v. State, 471 S.W.2d 401 (Tex. Cr[im]. App.

1971) (absent showing to the contrary, court presumes that retired judge

was properly assigned to the case).

Id. The Davis court observed:

Common to all of the above cases which hold the conviction void is the

constitutional or statutory disqualification or lack of qualification of the

judge. If the putative judge did not possess the prescribed qualifications

to act in that capacity or he was disqualified from a particular case

because of his relationship to the case or a party, he had no authority

over the proceedings and his actions were a nullity.

12

In French v. State, 546 S.W.2d 612 (Tex. Crim. App. 1977), the defendant’s

residence was searched. The evidence was seized pursuant to a search warrant

issued by an appointed municipal judge who had not taken the oath of office. The

court held that because the municipal judge had not taken the oath of office, the

search warrant he issued was void and the evidence seized was not admissible. Id.

at 614; see also French v. State, 572 S.W.2d 934 (Tex. Crim. App. 1977) (op. on

reh’g) (overruling first motion for rehearing). Thus, the trial court abused its

discretion by revoking the defendant’s probation based on this inadmissible

evidence. French, 546 S.W.2d at 614 (reversing and remanding).

32

Id. (emphasis in original); see also Mata v. State, 991 S.W.2d 900, 902 (Tex. App.—

Beaumont 1999, pet. ref’d) (“The actions of a judge without authority are void if the

judge is either disqualified, or is not qualified. [Davis, 956 S.W.2d] at 559.

Otherwise, the actions are merely voidable and must have been objected to in order

to be preserved for appeal.”).

Clifton, who agrees that only a complaint about the qualifications of a judicial

actor may be raised for the first time on appeal, asserts:

[H]e is not complaining about the associate judge’s qualifications to be

an associate judge. But contrary to what the State says, a complaint

about a judicial actor’s qualifications are not the only complaints that

need not be preserved. As the Davis Court makes clear, the key inquiry

is whether our Constitution disqualifies the judicial actor from taking

the action in question. And here, that is precisely Mr. Clifton’s

complaint. He is asserting that the associate judge is barred by the Texas

Constitution from handling voir dire in this case or in any other case.

We understand Clifton to argue that his conviction is void because the Texas

Constitution allows only district court judges to conduct voir dire and thus the

associate judge who conducted voir dire in his case was not qualified to perform that

judicial function. Clifton may challenge a void judgment for the first time on appeal.

See Nix, 65 S.W.3d at 668 (stating void judgments in criminal cases are nullities and

may be attacked at any time).

C. Analysis

Although Article V, Section 7 of the Texas Constitution authorizes elected

district court judges to preside over cases pending in district courts, Article V,

33

Section 7 neither vests district court judges with the exclusive authority to do so nor

expressly prohibits an unelected judge, including an associate judge, from presiding

over any aspect of a felony trial,13 including conducting voir dire. TEX. CONST. art.

V, § 7. Thus, contrary to Clifton’s arguments, the plain language of the Texas

Constitution does not bar associate judges from conducting voir dire in criminal

cases. See Johnson v. Tenth Jud. Dist. Ct. of Appeals at Waco, 280 S.W.3d 866, 872

(Tex. Crim. App. 2008) (“As with statutory construction, when we construe a

provision of the Texas Constitution, we are principally guided by the language of

the provision itself . . . .”); see also Fain v. State, 986 S.W.2d 666, 672 (Tex. App.—

Austin 1998, pet. ref’d) (“When interpreting our state constitution, we rely heavily

on its literal texts, and are to give effect to its plain language.”). Because the Texas

Constitution did not bar the associate judge from conducting voir dire in Clifton’s

13

“Criminal district courts have original jurisdiction in felony criminal cases.”

Henderson, 526 S.W.3d at 820; see TEX. CODE CRIM. PROC. art. 4.05 (“District

courts and criminal district courts shall have original jurisdiction in criminal cases

of the grade of felony, of all misdemeanors involving official misconduct, and of

misdemeanor cases transferred to the district court under Article 4.17 of this code.”);

see also TEX. CONST. art. V, § 8 ( “District Court jurisdiction consists of exclusive,

appellate, and original jurisdiction of all actions, proceedings, and remedies, except

in cases where exclusive, appellate, or original jurisdiction may be conferred by this

Constitution or other law on some other court, tribunal, or administrative body.”).

34

case, she was not disqualified from performing this function, and thus her actions

were not void.14

We overrule Clifton’s second issue.

Admission of Evidence

In his third issue, Clifton argues the trial court abused its discretion by finding

he was barred from asserting his rights under the Sixth Amendment’s Confrontation

Clause or objecting to the admission of Sanders’ out-of-court statements as hearsay

based on the doctrine of forfeiture by wrongdoing. Clifton contends that, at most,

the evidence demonstrates that it was his mother that bribed Sanders not to attend

trial, not him.

In his fourth issue, Clifton argues the trial court abused its discretion by

admitting Sanders’ out-of-court statements included in a report prepared by

emergency medical personnel (State Exhibit 55) and Sanders’ hospital records (State

Exhibit 56). He argues that the admission of these statements violated his rights

under the Sixth Amendment’s Confrontation Clause because Sanders was not

available to be cross-examined about the statements.15

14

Clifton does not dispute that the associate judge was authorized by statute to conduct

voir dire. See TEX. GOV’T CODE § 54A.006(d) (“An associate judge may select a

jury.”); id. § 54A.008(a)(15) (“Except as limited by an order of referral, an associate

judge to whom a case is referred may . . . select a jury.”).

15

Clifton suggests that the doctrine of forfeiture by wrongdoing does not apply to

State Exhibits 55 and 56 because they were not the subject of the Article 38.49

hearing conducted by the trial court.

35

The State argues that the doctrine of forfeiture by wrongdoing allowed the

admission of Sanders’ out-of-court statements, including State Exhibits 55 and 56,

because Clifton wrongfully procured Sanders’ unavailability at trial.

A. Standard of Review and Applicable Law

The Confrontation Clause of the Sixth Amendment guarantees an accused the

right to confront the witnesses against him. Paredes v. State, 462 S.W.3d 510, 514

(Tex. Crim. App. 2015). Under the Confrontation Clause, “testimonial”

statements—statements that were made under circumstances that would lead an

objective witness to reasonably believe they would be available for use at a later

trial—are inadmissible at trial unless the witness who made them either takes the

stand to be cross-examined or is unavailable and the defendant had a prior

opportunity to cross-examine the witness. Id.

Under the doctrine of forfeiture by wrongdoing, a defendant is barred from

objecting to a witness’ out-of-court statements based on the Confrontation Clause or

hearsay when he wrongfully procures the witness’ unavailability at trial. Colone v.

State, 573 S.W.3d 249, 264–65 (Tex. Crim. App. 2019). This exception applies only

when the defendant “engaged in conduct designed to prevent the witness from

testifying.” Giles v. California, 554 U.S. 353, 359, 365 (2008) (explaining that

absence of forfeiture rule for such conduct “would create an intolerable incentive for

defendants to bribe, intimidate, or even kill witnesses against them”). The doctrine

36

of forfeiture by wrongdoing is based on the principle that tampering with a witness

“should . . . estop the tamperer from making any objection based on the results of

his own chicanery.” Colone, 573 S.W.3d at 264 (quotation omitted); see generally

Davis v. Washington, 547 U.S. 813, 833 (2006) (stating doctrine of forfeiture by

wrongdoing extinguishes confrontation claims on equitable grounds and noting that

“when defendants seek to undermine the judicial process by procuring or coercing

silence from witnesses and victims, the Sixth Amendment does not require courts to

acquiesce. While defendants have no duty to assist the State in proving their guilt,

they do have the duty to refrain from acting in ways that destroy the integrity of the

criminal-trial system.”).

Texas Code of Criminal Procedure Article 38.49 codifies the doctrine of

forfeiture by wrongdoing. It states that:

(a) A party to a criminal case who wrongfully procures the

unavailability of a witness or prospective witness:

(1) may not benefit from the wrongdoing by depriving the

trier of fact of relevant evidence and testimony; and

(2) forfeits the party’s right to object to the admissibility of

evidence or statements based on the unavailability of the

witness as provided by this article through forfeiture by

wrongdoing.

(b) Evidence and statements related to a party that has engaged or

acquiesced in wrongdoing that was intended to, and did, procure

the unavailability of a witness or prospective witness are

admissible and may be used by the offering party to make a

37

showing of forfeiture by wrongdoing under this article, subject

to Subsection (c).

(c) In determining the admissibility of the evidence or statements

described by Subsection (b), the court shall determine, out of the

presence of the jury, whether forfeiture by wrongdoing occurred

by a preponderance of the evidence. If practicable, the court

shall make the determination under this subsection before trial

using the procedures under Article 28.01 of this code16 and Rule

104, Texas Rules of Evidence.17

(d) The party offering the evidence or statements described by

Subsection (b) is not required to show that:

(1) the actor’s sole intent was to wrongfully cause the

witness’s or prospective witness’s unavailability;

(2) the actions of the actor constituted a criminal offense; or

(3) any statements offered are reliable.

(e) A conviction for an offense under Section 36.05 or 36.06(a),

Penal Code, creates a presumption of forfeiture by wrongdoing

under this article.18

(f) Rule 403, Texas Rules of Evidence, applies to this article.19 This

article does not permit the presentation of character evidence that

16

Article 28.01 addresses what matters may be heard during a pretrial hearing. TEX.

CODE CRIM. PROC. art. 28.01.

17

Texas Rule of Evidence 104 addresses preliminary questions the trial court

decides, such as whether a witness is qualified, whether a privilege exists, or

whether evidence is admissible. TEX. R. EVID. 104(a).

18

TEX. PENAL CODE § 36.05(a) (witness tampering); id. § 36.06(a) (obstruction or

retaliation).

19

Texas Rule of Evidence 403 states that a trial court may exclude evidence if its

probative value is substantially outweighed by a danger of unfair prejudice,

confusing the issues, misleading the jury, undue delay, or needlessly presenting

cumulative evidence. TEX. R. EVID. 403.

38

would otherwise be inadmissible under the Texas Rules of

Evidence or other applicable law.

TEX. CODE CRIM. PROC. art. 38.49. The federal equivalent of Article 38.49 is Federal

Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine under federal law.

Federal Rule of Evidence 804(b)(6) states: “A statement offered against a party that

wrongfully caused—or acquiesced in wrongfully causing—the declarant’s

unavailability as a witness, and did so intending that result” is not excluded by the

rule against hearsay if the declarant is unavailable as a witness. FED. R. EVID.

804(b)(6). Thus, under both Texas and federal law, the doctrine of forfeiture by

wrongdoing applies when a defendant engages in conduct that was intended to, and

did, cause the unavailability of a witness or when the defendant acquiesces to such

wrongdoing. See TEX. CODE CRIM. PROC. art. 38.49(b); FED. R. EVID. 804(b)(6); see

also United States v. Rivera, 412 F.3d 562, 567 (4th Cir. 2005) (stating “[a]ctive

participation or engagement . . . is not required” for forfeiture-by-wrongdoing to

apply); United States v. Thompson, 286 F.3d 950, 963–64 (7th Cir. 2002) (imputing

co-conspirators actions to defendant for purposes of Rule 804(b)(6)); United States

v. Cherry, 217 F.3d 811, 820 (10th Cir. 2000) (same); Olson v. Green, 668 F.2d 421,

429 (8th Cir. 1982) (stating defendant “or someone acting on his behalf may waive

or forfeit [defendant’s] right” to confront accuser).

Because the forfeiture by wrongdoing doctrine concerns the admission of

otherwise inadmissible evidence, we utilize the abuse of discretion standard in

39

reviewing a trial court’s admission of evidence under the doctrine. See Shepherd v.

State, 489 S.W.3d 559, 572–73 (Tex. App.—Texarkana 2016, pet. ref’d). We will

uphold the trial court’s ruling if there is some evidence to support the trial court’s

decision and it is correct under any theory of law applicable to the case. See

Armendariz v. State, 123 S.W.3d 401, 405 (Tex. Crim. App. 2003) (stating appellate

courts must uphold evidentiary rulings if they are correct under any theory of law

supported by record regardless of what reason trial court gives); Osbourn v. State,

92 S.W.3d 531, 538 (Tex. Crim. App. 2002) (stating trial court does not abuse its

discretion by admitting evidence if there is some evidence to support trial court’s

decision). If the trial court does not issue findings of fact, we review the evidence

in the light most favorable to the trial court’s ruling and assume the court made

findings that are supported by the evidence. Shepherd, 489 S.W.3d at 572–73; see

also Schindler v. State, No. 02-17-00241-CR, 2018 WL 4924946, at *6 (Tex. App.—

Fort Worth Oct. 11, 2018, pet. ref’d) (mem. op., not designated for publication)

(stating that during Article 38.49 hearing, trial court is sole trier of fact and judge of

credibility of witnesses and weigh given their testimony). “When assessing evidence

regarding acts alleged to have procured a witness’ unavailability, we draw all

reasonable inferences in favor of the trial court’s finding.” Byrd v. State, No. 07-20-

00234-CR, 2022 WL 2719060, at *6 (Tex. App.—Amarillo July 13, 2022, pet. ref’d)

40

(mem. op., not designated for publication) (citing Brown v. State, 618 S.W.3d 352,

355 (Tex. Crim. App. 2021)).

B. Texas Code of Criminal Procedure Article 38.49 Hearing

As required by the statute, the trial conducted an Article 38.49 hearing outside

the presence of the jury. The State presented testimony from: Sergeant Mark

Schmidt, Investigator Bilsen Espinosa, Deputy Norman Fitts, and Caseworker Maria

Bahena.

1. Sergeant Mark Schmidt

Sergeant Mark Schmidt (“Sergeant Schmidt”) with the Harris County

Sheriff’s Office is an administrator of the county’s Inmate Phone System. Sergeant

Schmidt testified that inmates are allowed to make outgoing phone calls, but they

must enter a pin number before dialing a phone number and all outgoing inmate

phone calls are recorded. The inmate’s pin number is a combination of the inmate’s

eight-digit system person number (“SPN”), which is unique to that inmate, plus six

additional numbers. Sergeant Schmidt testified that inmates commonly use other

inmate SPNs to make phone calls.

According to Sergeant Schmidt, on August 18 and 19, 2022, an inmate placed

a call to Clifton’s mother, Viola Clifton (“Viola”), using a SPN belonging to an

inmate assigned to Clifton’s cell block. A DVD containing audio recordings of these

phone calls was admitted later in the hearing (State Exhibit 5).

41

2. Investigator Bilsen Espinosa

Investigator Bilsen Espinosa (“Investigator Espinosa”), with the Harris

County District Attorney’s Office’s Domestic Violence Division, testified that one

of his responsibilities is coordinating witnesses for trial, including issuing subpoenas

and making travel and lodging arrangements for witnesses. Investigator Espinosa

testified that he issued a subpoena to Sanders on August 18, 2022, and Sanders met

with the State on August 20, 2022. The trial court admitted a recording of Sanders’s

Zoom meeting with the State on August 20, 2022 (State Exhibit 8). Investigator

Espinosa testified that during that meeting, Sanders provided more details about the

assault, and she asked about court attire and logistical matters pertaining to her

testimony.

According to Investigator Espinosa, Sanders, who had been “very

cooperative” until that time, did not respond to District Attorney’s Office’s attempts

to contact her after the August 20, 2022 meeting.

3. Deputy Norman Fitts

Deputy Norman Fitts (“Deputy Fitts”), an investigator with the Harris County

Sheriff’s Office, interviewed Sanders at Southwest Memorial Hospital the night of

the assault. According to Deputy Fitts, Sanders was “traumatized” and had several

severe injuries. Sanders gave a recorded statement to Deputy Fitts which the trial

42

court admitted for purposes of the hearing (State Exhibit 10). Sanders gave Deputy

Fitts a detailed description of the assault and she named Clifton as her assailant.

Sanders told Deputy Fitts that she was afraid of Clifton, and she wanted to

press charges against him. The trial court also admitted photographs of Sanders

depicting her injuries and the apartment where the incident occurred (State Exhibits

12, 13, 14, 15, 16, and 17).

4. Caseworker Maria Bahena

Maria Bahena (“Bahena”), a caseworker with the Harris County District

Attorney’s Office, testified that she spoke with Sanders ten times prior to trial.

According to Bahena, Sanders, who asked her about getting a protective order, told

Bahena she was concerned about her safety because “she was still receiving contact

from the defendant’s family, from the defendant through social media accounts.”

Sanders told Bahena she was being contacted by Clifton’s mother, sister, and his

other family members.20

20

During the hearing, the trial court also admitted the following exhibits: (1) June 3,

2020 order granting the State’s Motion of Bond Conditions, which among other

things, prohibits Clifton from contacting Sanders (State Exhibit 1), (2) September

11, 2019 protective order which prohibits Clifton from “communicating directly

with [Sanders] in a threatening or harassing manner” (State Exhibit 2), (3) Clifton’s

jail card which identifies his mother, Viola Clifton, as his next of kin and lists her

telephone number (State Exhibit 3), and (4) the subpoena issued to Sanders (State

Exhibit 18).

43

When Bahena spoke to Sanders on August 19, 2022, Sanders wanted to know

how she could keep her personal information confidential and she asked about “any

services that may assist her with the reimbursement for the childcare, and loss of

work due to coming into court.” Based on their conversation, Bahena believed

Sanders would be flying in as scheduled for Clifton’s trial.

5. Phone Calls from the Harris County Jail

During the hearing, the trial court admitted four DVDs containing audio

recordings of phone calls Clifton made from the Harris County jail on the following

dates: September 11, 2019; January 19, 24, and 26, 2022; April 14, 2022; and August

19, 21, and 24, 2022. The audio recordings also included phone calls Clifton placed

on August 18 and 19, 2022, using the SPN belonging to another inmate in Clifton’s

cell block. The phones calls were admitted as State Exhibits 4, 5, 6, and 7. The trial

court also admitted a transcription of portions of those phone calls as a demonstrative

exhibit (State Exhibit 9).

After the State and Clifton rested, the trial court adjourned the hearing and

reviewed the audio recordings in State Exhibits 4, 5, 6, and 7 at the times indicated

in State Exhibit 9.

(a) September 11, 2019

On September 11, 2019, Clifton called his mother Viola from jail over a

recorded line. Clifton told Viola, “Call this girl ma, cause they say they throw this

44

case out, cause it ain’t how it look.” Viola asked him, “Who you want me to call?

[Sanders]?” Clifton responded, “Yeah . . . I need her cell.” Viola told him, “I

wouldn’t even call her. Let her know I’m up there. Don’t even let her know you up

there. They probably know how to get in touch with her.” Clifton responded, “They

can’t.” Later in the call Viola said, “You do not need to call that girl and let her

know that you are up there.” Clifton asked, “When is the last time you talk to her?”

Viola told Clifton, “I haven’t. She don’t answer the phone no more.”

(b) January 19, 2022

On January 19, 2022, Clifton called Viola from jail. Viola told him, “I talked

to [Sanders] today, she called me. She said [the] prosecutor called her today, and

told [her] you were back in custody, and she told them that she is not coming to

testify, she ain’t doing nothing. So she told me.” Clifton asked, “So what they say?”

Viola responded, “I’ve been calling the attorney. First of all, no witness, no nothing.

They ain’t got nothing. They might as well release you.” Later in the call, an

unidentified female asked Clifton when he was coming home and Clifton responded,

“I already called my mama. I ain’t do that shit. She ain’t going to testify.”

(c) January 24, 2022

On January 24, 2022, Clifton called Viola from jail. Clifton told Viola, “Don’t

call Jordan. Call J, so I can see what she talking about, what she said. Call J.” Viola

asked, “[Sanders]?” Clifton responded, “Yeah.” Viola told Clifton, “Hold on. She

45

talked to the DA. She called me when she talked to them.” Sanders then joined the

call. Clifton greeted her, “Hey J.” Sanders asked Clifton, “What’s up?” Clifton

responded, “Hey fool, look, check this out, right. I just came to court. I heard they

told you [inaudible]. Hear me you ain’t got to do . . . you ain’t got to say . . .” Clifton

also told Sanders, “Alright look, I’m going to set this junk for trial—they on some

gay ass shit . . . they offered 12 years and shit. He told me that you [inaudible]. But

they say the DA . . . whoever you told me you talked to, I just need you not to come

and they will dismiss on my trial date.” Sanders replied, “Alright. I already told

them. They called me a couple of days ago. I told them I wasn’t a part of it. Then

they were like am I sure. I was like yeah. They said it is still up to the judge and

that was all.”

(d) January 26, 2022

On January 26, 2022, Clifton called Viola from jail. A woman named Jordan

told Clifton, “Quit irritating me.” Clifton responded, “Fuck, I’m irritating you. How

you shouldn’t be irritated. You’re free. I’m the one irritated. I’m in jail. I said text

this number right there. I said grab your phone and text this number.” Jordan said,

“Not [Sanders].” Clifton told Jordan, “Nah, not texting that hoe. Fucking no. I’m

going to call her for? We ain’t got nothing to talk about for. We never have nothing

to talk about. I’m just trying to make sure the hoe gonna do what she’s supposed to

do so that I’m back on the other side. Other than that we ain’t have no conversations

46

with that hoe. I’m in this jam. Fuck. Be for real. I barely be wanting to talk to your

ass. Why the fuck would I talk to her?” An unidentified female then asked Clifton,

“Who am I texting? 346-756—who is it? I am not texting unless you tell me who

it is.” Clifton said, “What the fuck, why would I make you text the bitch. I am not

that bold to tell you to text the bitch. Baby this ain’t no bitch. The message say tell

her Robert said can she put the money on my books . . . .”

(e) April 14, 2022

On April 14, 2022, Clifton called Viola from jail. Seven minutes into the call,

an unidentified female told Clifton, “She didn’t answer. Hold on she calling back.

There you go.” Someone asked Clifton, “Hey you go to court?” and Clifton

responded, “They talking about setting me for trial. I go to court in 2 1/2 months.

Yeah I go.” An unidentified female stated, “The girl—she said the same thing—

they said the girl said she ain’t going to show up ain’t going forward with

prosecution. They feel they can still force her to come to court. If she don’t show

up for court they try to dismiss that. He full of shit. Cause you should have got out.”

At eight and a half minutes into the call, Viola states, “Shit when I talk to her

she said she done with that.” Clifton told her, “You need to make sure to let her

know don’t try to do no [indistinguishable].” Viola said, “They don’t know how to

get in touch with that girl they don't know her address. That lawyer is full of shit -

they don’t know how to get in contact with her. They need to dismiss that shit. You

47

let him know you know . . . hearsay can’t stand in court. Tell him you know the law.

They are going to be intimidated. He works for the state as well. If she don’t show

up to court it has to be dismissed as well.” At ten and a half minutes, Clifton told

Viola, “Hey try to call her though. You know what I am saying.” Viola said, “I

called. But you should be out.” Viola told Clifton, “Tell your lawyer hearsay can’t

stand up in the court of law. The girl already said she won’t show up to court. Y’all

need to let me know. This is a waste of taxpayer money. Nah, they ain’t going to

take to trial. They ain’t got no witness. They can’t go on hearsay.”

(f) August 18, 2022

On August 18, 2022, Clifton called Viola using another inmate’s SPN. When

Viola answered the phone, Clifton asked her if “that lawyer called.” Viola said,

“Yeah, he called me. . . Don’t listen. Play the game because tomorrow you gonna

be released.” Clifton said, “Look, look, you can talk on this call because this ain’t

my phone call, so they can’t hear what we saying. I am on someone else’s call, so

they can’t hear what we saying. This ain’t recorded all the time . . . You need to

umm get somebody to call that girl and make sure everything still . . . .” Viola

interrupted Clifton and told him, “She ain’t coming. She already said she is not

coming.” Clifton said, “When? That was a long time but you don’t know if they

scared her or what.” Viola assured Clifton, “They ain’t scare her Anthony. She ain’t

coming. Look. Tomorrow—I already told him you would take probation. If they

48

give you probation, you will take that or even time served. Don’t let no judge

sentence you to, or don’t take nothing. I already told him the deal . . . I said you got

nineteen months . . . I said tomorrow y’all can get him either time served or you can

get him some probation. I said either or. I said I can bet you anything she’s not

going to show up. She’s not coming. He said, well, she told me that.” Clifton

interrupted, “She told him what?” Viola said, “She had told him that. He said when

he told her I talked to her, she told me wasn’t coming. I said she’s not going to show

up.” Clifton said, “He told . . . said that she told umm . . . that she said they gonna

fly her out Wednesday. My trial start Thursday.” Viola said, “Tomorrow he’ll have

a deal for you. Whatever you do, you stick to time served or probation. No, you’re

not going to let no judge sentence you. That’s a no, cuz no you not gonna do that.

Tomorrow when you go in there they ain’t going to want to take you to trial. They

aren’t going to pay that money out for your ass . . .You ain’t even from Texas

. . .They ain’t gonna pay for no jury trial for you . . . you ain’t worth taxpayer money

like that. Tomorrow, you will take probation or time served. That’s it. Cause she

ain’t going to show up . . . they don’t even know where that girl at.” Viola assured

him he would be “coming home tomorrow. I can tell from how [the lawyer] was

talking.” Clifton asked, “What did he say because he was trying to bluff me out.”

Viola told Clifton to insist on going to trial, “Guess what? They gonna come and

say they will give you probation or time served.”

49

(g) August 19, 2022 at 3:48 pm

On Friday, August 19, 2022, the associate judge for the 178th Trial Court

presided over voir dire in Clifton’s case. Clifton, who had been in court for the

proceeding, called Viola at 3:48 p.m. after he returned to the jail. During the call,

Viola told Clifton, “That girl ain’t coming to court, I am going to call her.” Three

minutes later, Clifton told someone, “[Sanders], I don’t even talk to her. Her and I

ain’t on good terms.” Clifton said, “The only person that I got, that I know for sure,

that I can rely on, that’s been in my corner, is my mama . . . I can’t say what I am

going to do cause you can’t tell what [Sanders] is going to do, she might say yes and

she might not come . . . She might say yeah, they change her mind and she wanna

come. [Sanders] probably won’t even answer the phone for my mama . . . [Sanders]

won’t even let Jordan call her, so I know that’s out the window.”

(h) August 19, 2022 at 4:28 p.m.

An hour later at 4:28 p.m., Clifton called Viola using another inmate’s SPN.

Viola told Clifton that she had just spoken to Sanders and Sanders said that “they

subpoenaed her to come.” Viola said that when she asked Sanders if she was going

to testify, Sanders said, “I don’t know. I don’t know what I am going to do.” Clifton

asked Viola, “Did you tell her that if she doesn’t come, they will dismiss the case

and then they can’t do nothing to her?” Viola said, “Yeah.” Clifton told Viola, “I’m

on someone else’s phone call. So call her. They can’t trace this back to me. I’m on

50

someone else’s phone call. So call her right quick.” Viola told Clifton, “I believe if

you would have never ever gave them—they wouldn’t have been able to get in touch

with that girl . . . a long time ago—if they wouldn’t never had a way to get in contact

with her—you gave them a way to get in contact with her.”

Viola, who had apparently called Sanders and left a message, told Clifton,

“She probably going to call me back. She said yeah they subpoena me to come to

court, but I don’t know what to do. But you’re going to give . . . white folks . . . you

know . . . so I said to her Jerika, Jerika, first of all, you was trying to hit him with the

glass . . . .” Clifton interrupted Viola and asked her, “Why would you say that to her

though? Why did you do that? Out of everything—that was the worst thing you

could of ever said. Now you gonna make her.” Viola told him, “You just pray she

don’t show up to court.” Clifton urged Viola, “Just call her back one more time.

Try to call her back one more time. I don’t think she had her on the phone because

if they had her on the phone they would have gave me another charge for violating

a protective order.”21 A few seconds later, Clifton said, “Hello? She didn’t answer?

Hello?” Viola responded, “I don’t think she’s going to come to court.” Clifton

asked, “What did she say they told her?” Viola answered, “She said yeah they

21

The September 11, 2019 protective order, which was admitted during the Article

38.49 hearing, prohibits Clifton from “communicating directly with [Sanders] in a

threatening or harassing manner.” And the June 3, 2020 order granting the State’s

Motion of Bond Conditions prohibits Clifton from contacting Sanders.

51

subpoena her to court. If they subpoena her to court and she don’t come . . . .”

Clifton interrupted Viola, “The lawyer said they didn’t subpoena her yet—she lying.

They are calling to tell her to come to court. They don’t know where she is. She is

lying about that.” Clifton asked Viola, “You talked to her though?” and Viola said,

“Yeah, she called me back she called me twice, but her phone was messing up.”

Clifton asked, “So what else did she say?” Viola told him, “She will call me back.

I should have let the lawyer talk to her.” Clifton asked Viola, “Is she saying like

she’s going to come to court?” Viola told him, “She was like I don’t know what I’m

going to do. She said do I have to go?” Clifton asked, “What did you tell her?”

Viola responded, “Yeah—I did tell her that—said you ain’t got to go I don’t think

she coming [indistinguishable].” Clifton told Viola, “Them folks will give me 20

years. He said if I lose in trial they can give me twenty. The lowest I might get is

15 years if I lose in trial because I didn’t take the 12.” Clifton told Viola to “[t]ry to

tell Miles to call off his phone.” Viola assured Clifton, “You ain’t going to go to

trial, trust me.” When Clifton asked if she was “calling the phone,” Viola said, “She

ain’t answering no more. I don’t think she is going to come to court. I just don’t.”

Clifton told her, “If she’s not coming to court—why is she not answering the phone.

You got me scared. She got me scared. ‘I don’t know what I am going to do’ what

does she mean she don’t know what she is going to do?”

52

When Viola told Clifton that she had to go, Clifton told her, “Wait what was

it you told me you tell her? Why ain’t you telling her man they trying to get him a

lot of time. This case old. Y’all don’t conversate no more or nothing. You can just

leave this alone. You been moving on so like—why you ain’t talk to [Sanders] like

that.”22 Clifton then asked Viola “how long I be on that phone.” Viola told him,

“Not that long. Call back. I’m going to try to call her. Call back later on.”

(i) August 21, 2022

On Sunday, August 21, 2022, Clifton called Viola. Viola asked Clifton if he

was using his SPN, or someone else’s and he told her it was “his call.” Viola told

him, “That girl ain’t coming to court . . .You’ll be home Thursday.” Clifton said, “I

know.” When Clifton continued to ask for money for his jail spending account,

Viola assured him that he will be “walking out of there Thursday.” Viola said, “I

talked to her for about 2 hours. She’s not coming. You gonna call me from

somebody else’s phone?” Viola told him, “That girl ain’t coming to court.” Clifton

asked, “How you know that?” Viola told Clifton, “I know she ain’t. I gave her baby

$2,000 worth of clothes. She said I am not coming. I am definitely not coming. She

said I will not be there.” Clifton asked, “How did you get it to her?” Viola

responded, “How do you think? . . . I mailed it to her. It’s going out, uh. We tried

22

The transcriber included the following notation: “This is not phrased as a

suggestion. This is phrased tell her this when you talk to her.”

53

to send it off yesterday, but she said the address was a PO box . . . so uh, we mailing

it off where it get there next day, so she will get it Tuesday.” Viola told Clifton,

“And I don’t see how a trial could go on without a witness. I ain’t never heard of

that in my life.”

(j) August 24, 2022

On Wednesday, August 24, 2022, the day before trial began, Clifton called

Viola and told her he had spoken to his lawyer and the lawyer told him that if Sanders

“don’t show up they might be time served.” Viola stated, “We know she ain’t gonna

show up . . . Ima call her again today.” Clifton said, “Alright.” Viola told him,

“They already know [Sanders] ain’t going to show up cuz they already know that if

she were going to show up, she would be here now. And he would know if she was

here. That girl told me yesterday she ain’t coming. I am gonna to call her again and

make sure she got her baby clothes because they was there.”

6. Trial Court’s Ruling

After hearing the testimony and reviewing State Exhibits 4, 5, 6, and 7 in

chambers, the trial court found:

In regards to the evidence submitted at this hearing, the Court finds that

the State does indeed prove by a preponderance of the evidence the

intent of the defendant to make the complainant unavailable for trial.

And for those reasons, the State’s motion is granted. And the State’s

seeking to admit the following evidence is therefore granted in regards

to the complainant’s statement to police detectives at the hospital. [State

Exhibit 10]. Number two, the complainant’s statement in a witness

54

meeting on August 20th of 2022 in regards to jail calls [State Exhibit

8].

7. Statements from Sanders Admitted During Trial

When Sanders failed to appear for trial, the State offered into evidence a DVD

containing an audio recording of the statement Sanders gave to Deputy Fitts at the

hospital. Clifton objected to the admission of the DVD based on hearsay and the

Confrontation Clause. The trial court overruled Clifton’s objections and admitted

State Exhibit 10 into evidence.23 The State also offered into evidence a DVD

containing the statements Sanders made during her August 20, 2022 meeting with

the State as State Exhibit 54. The trial court stated the exhibit had been admitted at

the Article 38.49 hearing as State Exhibit 8.24

The State also offered into evidence a DVD containing audio recordings of

four of Clifton’s jail calls previously admitted at the Article 38.49 hearing (State

Exhibit 57). State Exhibit 57 contains audio recordings of calls made on January 24

and 26, 2022, and August 19 and 21, 2022.25 Clifton objected to the admission of

the January 24, 2022 call included on State Exhibit 57, which includes statements

23

Clifton also objected to the admission of State Exhibit 10 pursuant to Texas Rules

of Evidence 403, 404(b), and 802 (hearsay). The trial court overruled these

objections and Clifton is not challenging the trial court’s ruling on appeal.

24

Clifton did not object to the admission of State Exhibit 54 when it was admitted at

trial.

25

The January 24 and 26, 2022 calls were included on State Exhibit 4. The August

19, 2022 call was included on State Exhibit 5, and the August 21, 2022 call was

included on State Exhibit 6.

55

Sanders made to Clifton, based on hearsay and the Confrontation Clause.26 The trial

court noted that the jail calls had been admitted at the Article 38.49 hearing. The

trial court overruled Clifton’s objections and admitted State Exhibit 57 into evidence

in its entirety.

The State also offered into evidence a report prepared by emergency medical

personnel containing statements Sanders gave to a paramedic describing the assault

(State Exhibit 55), and Sanders’ hospital records, containing statements Sanders

made describing the assault and identifying Clifton as her assailant (State Exhibit

56). Clifton objected to the admission of Sanders’ statements in State Exhibits 55

and 56 based on the Confrontation Clause.27 The State argued the statements were

not testimonial and thus the Confrontation Clause was not applicable. The trial court

overruled Clifton’s objection and admitted State Exhibits 55 and 56 into evidence in

their entirety.

C. Analysis

Clifton argues there is no evidence he engaged in conduct intended to prevent

Sanders from testifying at trial. According to Clifton, the evidence shows he knew

26

Clifton also objected to the admission of State Exhibit 57 based on relevance,

hearsay, and pursuant to Texas Rules of Evidence 403 and 404(b). The trial court

overruled these objections and Clifton is not challenging the trial court’s ruling on

appeal.

27

Clifton also objected that the statements constituted inadmissible hearsay. The trial

court overruled the objection and Clifton does not appear to be challenging the trial

court’s ruling on appeal.

56

he was facing twenty years’ incarceration if convicted, and he believed the State

would offer him either probation or time served if Sanders did not testify at trial, but

there is no evidence he did “anything to dissuade [Sanders] from attending in the

first place” or “attempt[ed] to procure [Sanders’] absence from the trial.” Clifton

argues that, at most, the evidence, including his August 21, 2022 phone call to his

mother, demonstrates that his mother Viola offered Sanders $2,000 worth of baby

clothes in a last-minute attempt to “entice [Sanders] into not coming to the trial.”

According to Clifton, “[n]othing on [the August 21, 2022] call indicates that [he]

suggested that [Viola] take such an action.”

Article 38.49 of the Texas Code of Criminal Procedure provides that a

defendant “who wrongfully procures the unavailability of a witness . . . forfeits [his]

right to object to the admissibility of evidence or statements based on the

unavailability of the witness as provided by this article through forfeiture by

wrongdoing.” TEX. CODE CRIM. PROC. art. 38.49. The record includes some

evidence that Clifton wrongfully procured Sanders’ unavailability for trial by

acquiescing to his mother’s actions in bribing Sanders to ensure she did not appear

for his trial.

On January 19, 2022, eight months before Clifton’s trial, Clifton and Viola

discussed whether Sanders would be coming to his trial. Viola, who had spoken to

Sanders, reported that Sanders told the State she was not coming. Viola told Clifton

57

that without Sanders’ testimony, the State “ain’t got nothing. They might as well

release you.” Five days later, Clifton told Viola to call Sanders because he wanted

to “see what she talking about.” When Sanders joined the call, Clifton told Sanders

that, despite what the State may have told her, she did not have to come to court and

testify against him. He told Sanders, “I just need you not to come and they will

dismiss on my trial date.” Sanders told Clifton that she told the State that she “wasn’t

a part of it,” and they told her that “it is still up to the judge.” Two days later, on

January 26, 2022, Clifton told a person named Jordan that he and Sanders had

nothing to talk about, and that he was “just trying to make sure the hoe [Sanders]

gonna do what she’s supposed to do so that I’m back on the other side.”

In April 2022, Viola and Clifton continued to discuss the need to keep Sanders

from testifying at trial because they believed that without her testimony, the State

would have no choice but to dismiss the case. Clifton directed Viola to “make sure

to let [Sanders] know don’t try to do no [indistinguishable].” He also told Viola,

“Hey try to call [Sanders] though. You know what I am saying.” Viola responded,

“I called. But you should be out.”

On August 18, 2022, one week before Clifton’s trial, Clifton called Viola

using another inmate’s SPN because he believed jail officials could not hear their

conversation. Clifton told Viola, “You need to umm get somebody to call [Sanders]

and make sure everything still . . . .” Viola interrupted Clifton and told him, “She

58

ain’t coming. She already said she is not coming.” Clifton said, “When? That was

a long time but you don’t know if they scared her or what.” Viola told Clifton that

Sanders was not coming to trial. Viola reported she had spoken to Clifton’s lawyer

and told him that Sanders was not coming to trial, that Clifton would not be going

to trial, and that Clifton would accept either probation or time served. Viola told

Clifton that his lawyer told her that Sanders told him she was not coming to trial, to

which Clifton remarked that his lawyer told him that Sanders stated the State would

be flying her to Houston, Texas the day before his trial was scheduled to start. Viola

told Clifton that Sanders “ain’t going to show up . . . they don’t even know where

that girl at.”

After voir dire on August 19, 2022, Viola told Clifton, “That girl ain’t coming

to court, I am going to call her.” Viola called Sanders and reported to Clifton that

the State had subpoenaed Sanders for trial and Sanders didn’t know if she was going

to trial. Clifton asked Viola if she told Sanders that if “she doesn’t come, they will

dismiss the case and then they can’t do nothing to her?” Viola responded, “Yeah.”

Viola called Sanders at Clifton’s request and left a message. Clifton urged Viola,

“Just call her back one more time. Try to call her back one more time. I don’t think

she had her on the phone because if they had her on the phone they would have gave

me another charge for violating a protective order.” Viola told Clifton that Sanders

59

had called her back twice and she indicated that Sanders was worried about

disobeying the subpoena.

Clifton told Viola that Sanders was lying when she said she received a

subpoena because his lawyer told him the State had not subpoenaed Sanders yet.

Clifton told Viola that the State was calling Sanders, but “they do not know where

she is.” Viola responded that she tried to call Sanders, but Sanders “ain’t answering

no more.” During the call, Clifton appears noticeably concerned that Sanders might

testify at trial, despite her previous representation she would not be attending.

On Sunday, August 21, 2022, the day after Sanders met with the State via

Zoom, Clifton called Viola again. Viola told Clifton she had spoken to Sanders for

two hours and she assured Clifton that Sanders was not coming to his trial. When

Clifton asked how she could be so sure Sanders would not testify, Viola said, “I

know she ain’t. I gave her baby $2,000 worth of clothes. [Sanders] said I am not

coming. I am definitely not coming. She said I will not be there.” Viola told Clifton

she had “mailed [the clothes] to [Sanders]. It’s going out, uh. We tried to send it

off yesterday, but she said the address was a PO box . . . so uh, we mailing it off

where it get there next day, so she will get it Tuesday,” August 23, 2022—the day

before Sanders was scheduled to fly to Houston for Clifton’s trial.

Viola’s statement indicates that Sanders accepted the clothes and assured

Viola she would not testify at Clifton’s trial. While Viola attempted to mail the

60

clothes to Sanders on Saturday, August 20, 2022, Viola was not successful and she

told Clifton she planned to mail them on Monday, August 22, 2022 for “next day”

delivery on Tuesday, August 23, 2022, one day before Sanders was scheduled to fly

to Houston for Clifton’s trial. Clifton did not object to Viola’s plan to bribe Sanders

to keep her from testifying at trial. Nor did he try to stop Viola from sending the

clothes to Sanders. Viola followed up with Sanders on Tuesday, August 23, 2022,

and Wednesday, August 24, 2022, to make sure she had received the clothes and

was not coming to trial. On August 24, 2022, the day before trial, Viola assured

Clifton that Sanders was not coming to trial. She told Clifton, “That girl told me

yesterday she ain’t coming. I am gonna to call her again and make sure she got her

baby clothes because they was there.”

During his calls to Viola, Clifton told her she needed to tell Sanders that if she

did not testify, the State would dismiss the case against Clifton, and there was

nothing the State could do to her if she did not comply with the State’s subpoena. It

is apparent from the calls that Clifton was concerned Sanders would come to

Houston to testify at his trial, despite her prior statements to the contrary.

This evidence, when viewed in favor of the trial court’s ruling admitting the

objectionable evidence under the forfeiture by wrongdoing doctrine, demonstrates

that Clifton knew about Viola’s plan to bribe Sanders with baby clothes to ensure

her absence trial, and he neither objected to the plan, nor make any attempt to stop

61

Viola from mailing the clothes to Sanders. Clifton tacitly agreed with Viola’s

decision to bribe Sanders. The trial court thus reasonably could have found from

this evidence that Clifton acquiesced to Viola bribing Sanders with baby clothes to

ensure her unavailability at Clifton’s trial. See TEX. CODE CRIM. PROC. art. 38.49(b)

(stating “[e]vidence and statements related to a party that has engaged or acquiesced

in wrongdoing that was intended to, and did, procure the unavailability of a witness

or prospective witness are admissible” to prove forfeiture by wrongdoing); see also

Rivera, 412 F.3d at 567 (stating “[a]ctive participation or engagement . . . is not

required” for forfeiture by wrongdoing to apply and noting dictionary defines

acquiescence as “the act or condition of acquiescing or giving tacit assent; agreement

or consent by silence or without objection”).

The trial court also could have reasonably concluded from the evidence that

Clifton repeatedly directed Viola to contact Sanders to make sure she would not

testify at his trial, that he instructed Viola to communicate certain information to

Sanders for that purpose, and that any acts Viola took to keep Sanders from testifying

at trial, including bribing Sanders, were done on Clifton’s behalf. See Olson, 668

F.2d at 429 (stating someone acting on defendant’s behalf to procure unavailability

of witness can operate to waive defendant’s hearsay objection).

We thus hold the trial court did not abuse its discretion by finding by a

preponderance of the evidence that Clifton wrongfully procured Sanders’

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unavailability at trial and was thus barred by the doctrine of forfeiture by wrongdoing

from challenging the admission of Sanders’ out-of-court statements to Deputy Fitts

at the hospital (State Exhibit 10), to the State during the August 20, 2022 meeting

(State Exhibit 8), and to Clifton during the January 24, 2022 phone call (State Exhibit

4) based on the Confrontation Clause. See TEX. CODE CRIM. PROC. art. 38.49(a)(2)

(stating defendant “who wrongfully procures the unavailability of a witness or

prospective witness . . . forfeits [his] right to object to the admissibility of evidence

or statements based on the unavailability of the witness as provided by this article

through forfeiture by wrongdoing”); id. art. 38.49(b) ( “Evidence and statements

related to a party that has engaged or acquiesced in wrongdoing that was intended

to, and did, procure the unavailability of a witness or prospective witness are

admissible and may be used by the offering party to make a showing of forfeiture by

wrongdoing . . . .”).28 We similarly hold that the trial court did not abuse its

discretion by admitting State Exhibits 4, 8, and 10 for the same reasons.

In his fourth issue, Clifton argues the trial court abused its discretion by

admitting Sanders’ statements included in the report prepared by emergency medical

personnel (State Exhibit 55) and Sanders’ hospital records (State Exhibit 56) because

the admission of those statements violated his rights under the Sixth Amendment’s

28

Clifton does not dispute that the bribe of $2,000 worth of baby clothes was intended

to, and did in fact, procure Sanders’ unavailability at trial.

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Confrontation Clause. See Paredes, 462 S.W.3d 514 (stating Confrontation Clause

precludes admission of witness’ testimonial statements unless witness takes stand to

be cross-examined or is unavailable and defendant had prior opportunity to

cross-examine witness).29 Clifton suggests that he is not barred from challenging

the admission of these statements based on the Confrontation Clause because the

statements were not “the subject of the inquiry at the forfeiture-by-wrongdoing

hearing.”

The doctrine of forfeiture by wrongdoing is a rule of estoppel designed to

prevent a defendant from benefiting from his own wrongdoing. See Colone, 573

S.W.3d at 264 (stating doctrine of forfeiture by wrongdoing based on principle that

tampering with witness “should . . . estop the tamperer from making any objection

based on the results of his own chicanery”); see also Gonzalez v. State, 195 S.W.3d

114, 117 (Tex. Crim. App. 2006) (stating doctrine of forfeiture by wrongdoing “is

based on common honesty and the maxim that no one shall be permitted to take

advantage of his own wrong”) (internal citations omitted). Thus, a defendant who

wrongfully procures a witness’ unavailability cannot later challenge admission of

that witness’ out-of-court statements because the witness is not available for cross-

29

Testimonial statements are statements that were made under circumstances that

would lead an objective witness to reasonably believe they would be available for

use at a later trial. Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015).

64

examination. Colone, 573 S.W.3d at 264–65.30 We can discern no logical reason to

allow a defendant to benefit from his own malfeasance simply because the out-of-

court statements of the unavailable witness are admitted during trial as opposed to

during the pre-trial Article 38.49 hearing. Moreover, Clifton has not directed this

Court to, and we have not found, any authority that would support such a proposition.

Appellate courts must affirm an evidentiary ruling if the ruling is supported

by the record and correct under any theory of law applicable to the case. See

Armendariz, 123 S.W.3d at 405; Osbourn, 92 S.W.3d at 538. The trial court’s

decision to overrule Clifton’s Confrontation Clause objections to State Exhibits 55

and 56 was correct because the out-of-court statements included in those exhibits

were made by Sanders, the witness whose unavailability Clifton wrongfully

procured, and thus, Clifton was barred from challenging the admission of those

statements based on the Confrontation Clause. See Armendariz, 123 S.W.3d at 405;

Osbourn, 92 S.W.3d at 538.

We overrule Clifton’s third and fourth issues.

30

A defendant can object to the admission of a witness’ out-of-court statements on

other grounds. See Colone, 573 S.W.3d at 266 (“Although the doctrine of forfeiture

by wrongdoing bars Appellant from challenging statements about his prior

commission of an aggravated robbery on the basis that those statements were made

out of court, that doctrine does not prevent him from challenging the statements on

the basis of their subject matter—that they describe an extraneous offense.”).

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Post-Conviction Admonishments

In his fifth issue, Clifton argues the trial court failed to comply with Texas

Administrative Code Section 176.1 because the court did not orally admonish

Clifton that his possession of a firearm could lead to criminal charges. See TEX.

ADMIN. CODE § 176.1. The State responds that “nothing in the Administrative Code

specifies that that part of the admonishment be oral [and the] trial court gave

[Clifton] a written admonishment that informed him of the possibility of criminal

charges.”

In his sixth issue, Clifton argues the trial court erred by admonishing him that,

as a convicted felon, he could not possess ammunition because there is no Texas law

prohibiting a convicted felon from possessing ammunition. While Texas law

prohibits a convicted felon from possessing a firearm, the prohibition does not

extend to ammunition. Federal law, however, prohibits convicted felons from

possessing both firearms and ammunition. See 18 U.S.C. 922(g) (“It shall be

unlawful for any person . . . who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one year[] to . . . possess in or

affecting commerce, any firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported in interstate or foreign

commerce.”).

66

Even assuming, without deciding, that Section 176.1 of the Texas

Administrative Code creates an enforceable right, and that the trial court erred by

failing to admonish Clifton orally of his rights as a convicted felon under Section

176.1, and admonishing Clifton that he could not possess ammunition because there

is no Texas law prohibiting a convicted felon from possessing ammunition, we

cannot reverse on either basis unless Clifton was harmed by the error. See TEX. R.

APP. P. 44.2. All errors are subject to harmless error analysis under Texas Rule of

Appellate Procedure 44.2, except for a very narrow category of errors defined by the

United States Supreme Court as “structural” errors.31 Although a defendant does not

bear the burden to prove harm, he must still brief the question of harm and provide

31

Structural errors comprise a narrow class of cases involving the deprivation of

federal constitutional rights. See Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim.

App. 2005) (citing Johnson v. United States, 520 U.S. 461, 468–469 (1997)); see

also Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (structural error is error of

constitutional magnitude that “affect[s] the framework within which a trial proceeds

rather than simply an error in the trial process itself”). The United States Supreme

Court has defined the following errors as structural: (1) lack of an impartial trial

judge; (2) the unlawful exclusion of members of the defendant’s race from a grand

jury; (3) the denial of the right to self-representation at trial; (4) the denial of the

right to a public trial; (5) an instruction that erroneously lowers the burden of proof

for conviction below the “beyond a reasonable doubt” standard; and (6) the total

deprivation of counsel. See Johnson, 520 U.S. at 468–69; see also U.S. v. Davila,

569 U.S. 597, 611 (2013) (stating structural errors constitute “highly exceptional

category” of errors). The Texas Court of Criminal Appeals plurality decision in

Lake v. State, 532 S.W.3d 408 (Tex. Crim. App. 2017), indicates that a very narrow

class of non-structural errors may also be immune to a harmless error analysis. Id.

at 411 (citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (“Except

for certain federal constitutional errors labeled by the United States Supreme Court

as ‘structural,’ no error . . . is categorically immune to a harmless error analysis.”)).

67

supporting arguments, substantive analysis, and appropriate citations to authorities

and to the record to avoid briefing waiver. See Reeves v. State, 420 S.W.3d 812, 816

(Tex. Crim. App. 2013) (“Neither the State nor the defendant has a burden to prove

harm.”); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (holding

defendant waived issue on appeal because he failed to address whether alleged error

was harmful); see also TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to contain

“a clear and concise argument for the contentions made, with appropriate citations

to authorities and to the record”).

Clifton neither argues he was harmed by the trial court’s failure to admonish

him orally that, as a convicted felon, his possession of a firearm could result in

criminal charges or by the trial court admonishing him that he could not possess

ammunition, nor does he assert that these alleged errors fit one of the very narrow

exceptions that are immune from the harmless error analysis. Clifton thus waived

these issues due to inadequate briefing. See Cardenas, 30 S.W.3d at 393; see also

Wilson v. State, 473 S.W.3d 889, 901 (Tex. App.—Houston [1st Dist.] 2015, pet.

ref’d) (holding defendant waived issue when he did not “argue that he was harmed

by” alleged error).

We overrule Clifton’s fifth and sixth issues.

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Assessment of Court Costs

In his seventh issue, Clifton argues the trial court erred by assessing him a

$185 state consolidated court cost and a $105 local consolidated court cost because

he committed the offense on June 3, 2019, and these consolidated courts costs are to

be assessed only for offenses committed on or after January 1, 2020. See TEX. LOC.

GOV’T CODE § 134.101. Clifton asks the Court to remand the case to the trial court

for a correct assessment of court costs.

The State agrees that the assessment of court costs is incorrect and asks the

Court to remand the case to the trial court for a correct assessment of court costs, but

only after affirming the conviction and sentence.32 See Authorlee v. State, No. 14-

20-00821-CR, 2022 WL 220267, at *4 (Tex. App.—Houston [14th Dist.] Jan. 25,

2022, pet. ref’d) (mem. op., not designated for publication) (affirming conviction

and sentence but remanding for proper assessment of court costs). Having overruled

Clifton’s challenges to his conviction and sentence, we agree with the State.

We therefore sustain Clifton’s seventh issue.

32

The State argues that the trial court’s alleged failure to inquire on the record about

Clifton’s ability to pay fines and costs is harmless. See TEX. R. APP. P. 44.2.

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Conclusion

We affirm Clifton’s conviction and sentence and remand the case to the trial

court for a correct assessment of court costs.33 See id.

Veronica Rivas-Molloy

Justice

Panel consists of Justices Goodman, Landau, and Rivas-Molloy.

Do Not Publish. TEX. R. APP. P. 47.2(b).

33

In his eighth issue, Clifton argues the trial court violated Article 42.15(a-1) of the

Texas Code of Criminal Procedure by imposing $290 in consolidated court costs

against him without first inquiring on the record about his ability to pay such costs

and he asks this court to remand the case to the trial court to conduct an on-the-

record inquiry. In his ninth issue, Clifton argues that the judgment incorrectly omits

the “Statute for Offense,” the bar-card numbers of Clifton’s defense counsel and the

two prosecutors, and an affirmative finding that Clifton committed a felony. He

further contends that the trial court failed to “check the box next to the statement

that the sentence is to be executed” and although the judgment gives him credit for

550 days of jail time to be used “toward incarceration, fine, and costs,” the judgment

does not explain how such credits are to be allocated.

Because we are remanding the case to the trial court to reassess the amount of court

costs, the trial court will have an opportunity to inquire on the record into Clifton’s

ability to pay costs and make any modifications to the judgment it deems necessary.

Therefore, we need not address issues eight and nine on appeal.

We note that the trial court may also take this opportunity to provide any further

admonishments to Clifton that the trial court deems appropriate.

70