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PILAR RODRIGUEZ GARCIA

THE STATE OF TEXAS

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Opinion

A grand jury in Kleberg County indicted Pilar Rodriguez Garcia, appellant, for felony possession of marihuana in Kenedy County. See Tex. Code Crim. Proc. Ann. art. 13.22 (Vernon Supp. 1996). After pleading guilty, appellant was convicted and sentenced to ten years imprisonment and fined five thousand dollars. In one point of error, he contends that the indictment returned by the Kleberg County Grand Jury was defective because the crime was committed in Kenedy County. We affirm.

Appellant was arrested in Kenedy County at a U.S. Border Patrol checkpoint south of Sarita, Texas. Kleberg, Kenedy and Nueces Counties comprise the 105th Judicial District, and the District Attorney for that district is responsible for the prosecution of all felonies committed in those counties. See Tex. Gov't Code Ann. §§ 24.207, 43.148 (Vernon 1985, Vernon Supp. 1999).

Appellant did not challenge the indictment or the capacity of the grand jury to charge him with a crime committed outside its county before he entered his plea, but raises the complaint for the first time on appeal. Appellant cannot raise this issue on appeal because he did not object to the indictment in any way prior to entering his plea. See Tex. R. App. Proc. 33.1 (A party cannot raise an issue on appeal that was not objected to at the trial court). Additionally, article 1.14(b) of the Texas Code of Criminal Procedure states that defects, errors, and irregularities of either form or substance in an indictment must be raised by pretrial objection or they are waived in post-conviction proceedings. Fisher v. State, 887 S.W.2d 49, 54 (Tex. Crim. App. 1994) (en banc); Ex parte Gibson, 800 S.W.2d 548, 551 (Tex. Crim. App. 1990) (en banc). In order to preserve error regarding a defect in the indictment, the defendant must file a motion to quash or a motion for new trial based on the alleged defect. See Crum v. State, 946 S.W.2d 349, 358 (Tex. App.--Houston [14th Dist.] 1997, pet. ref'd).

Furthermore, appellant did not file a motion to quash the indictment before entering his plea. Although appellant filed a motion for new trial, he did not address any defect in the indictment. Therefore, the issue of whether the indictment is defective because it was not presented in the county where the offense occurred is not properly before this court. Even if appellant had preserved error, we conclude the indictment is not defective. Article 13.22 of the Texas Code of Criminal Procedure states "[a]n offense of possession of marihuana may be prosecuted in the county where the offense was committed or with the consent of the defendant in a county that is adjacent to and in the same judicial district as the county where the offense was committed." Tex. Code Crim. Proc. Ann. art. 13.22 (Vernon Supp. 1996). Pursuant to article 13.22, this Court takes judicial notice sua sponte that Kleberg and Kenedy Counties are adjacent counties within the same judicial district. See Granados v. State, 843 S.W.2d 736 (Tex. App.--Corpus Christi 1992, no pet.) (An appellate court may take judicial notice sua sponte that Kleberg and Kenedy Counties are adjacent counties within the 105th Judicial District of Texas).

In Rodriguez v. State, 918 S.W.2d 34, 36 (Tex. App.--Corpus Christi 1996, pet. denied) this Court held that crimes committed in one county of the 105th Judicial District may be prosecuted in another county within that district so long as the defendant consents to the case being tried in that county. Appellant signed a waiver of rights that included a consent to venue other than that in which the offense occurred as provided by section 13.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 13.22 (Vernon Supp. 1996). Because appellant signed the Consent to Venue provision of the Defendant's Waiver of Rights, venue was proper under article 13.22. See id.

Moreover, we held in Rodriguez, that an indictment is sufficient to invest the 105th District with jurisdiction over the cause where the indictment meets the requirements of article 5, section 12 of the Texas Constitution. See Rodriguez, 918 S.W.2d at 36. Article 5, section 12(b) provides "[a]n indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense ... . The presentment of an indictment or information to a court invests the court with jurisdiction of the cause." Tex. Const. art. V, § 12(b). Because the Kleberg County Grand Jury returned the indictment to the 105th District Court of that county, the indictment invested the 105th District with jurisdiction.

Appellant contends that, in enacting article 13.22 of the Texas Code of Criminal Procedure, the legislature granted the grand jury the power to prosecute a defendant in a county adjacent to and in the same judicial district as the county where the offense was committed, with the defendant's consent, only as a matter of convenience. We find this argument devoid of any merit. There is no indication that the legislature intended to enact article 13.22 as a matter of convenience only. To allow venue to lie in a different county other than the county where the offense was committed without affording that county's grand jury the power to indict for the crime would be meaningless. Rodriguez, 918 S.W.2d at 37. The legislature clearly intended to give the grand jury the power to indict for the possession of marihuana in another county within the same judicial district with the consent of the defendant. Id.

Appellant's one point of error is overruled and his conviction is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 8th day of June, 2000.