Wilson v. State , 1998 Tex. Crim. App. LEXIS 133 ( 1998 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge, delivered the opinion of the Court, in which McCORMICK, Presiding Judge, and BAIRD, MEYERS, PRICE, HOLLAND and WOMACK, Judges, joined.

An assigned former judge, whose assignment had already expired, presided at appellant’s trial. The question presented is whether appellant was entitled to complain of that procedural irregularity for the first time on appeal.

The Relevant Facts

On May 21, 1993, a Harris County grand jury returned an indictment in the 232nd District Court of Harris County charging appellant with possession of a controlled substance, namely cocaine, in an amount less than 28 grams. See Tex. Health & Safety Code § 481.115. On March 31, 1995, the presiding judge of the Second Administrative Judicial Region, acting pursuant to Texas Government Code § 74.056(a), assigned the Honorable Robert Burdette, former judge of the 184th District Court of Harris County, to the 262nd District Court of Harris County for a five-week period beginning April 3, 1995, and ending May 7, 1995. On May 10, 1995, appellant’s jury trial began in the 262nd District Court,¹ with Judge Burdette presiding. Appellant did not object to Judge Burdette presiding at his trial. Appellant’s jury subsequently found him guilty as charged, and Judge Burdette assessed appellant’s punishment, enhanced by two prior felony convictions, at imprisonment for thirty years.

On appeal, appellant argued, for the first time, that Judge Burdette had lacked legal authority to preside at his trial because Judge Burdette’s assignment had expired three days before the trial had begun. Appellant argued further that the error entitled him to a reversal of his conviction. Appellant did not argue, however, that Judge Bur-dette had been constitutionally or statutorily unqualified or disqualified from presiding.

The Fourteenth Court of Appeals affirmed appellant’s conviction without reaching the merits of his argument concerning Judge Burdette:

It is well settled that the proper method to challenge the authority of the trial judge is to bring a direct action through a quo warranto proceeding rather than by a collateral attack on appeal. Appellant concedes that prior to trial he faded to object to, or otherwise challenge, Burdette’s authority to act as the presiding judge. By failing to object in a proper and timely manner, appellant has waived his right to complain about the validity of the judge’s assignment.

Wilson v. State, 944 S.W.2d 444, 445 (Tex. App.—Houston [14th Dist.] 1997) (citations omitted).

Appellant later filed a petition for discretionary review, in which he asserted two grounds for review. We granted appellant’s ground for review number one to determine whether the Court of Appeals had erred in refusing to reach the merits of his argument.² See Tex.R.App. Proc. 66.3(b).

Analysis

As the Court of Appeals noted, under our precedents, an appellant may not object, for the first time on appeal, to a procedural irregularity in the assignment of a former judge who is otherwise qualified.³ Rather, a defendant “must bring a direct action through a quo warranto proceeding.” Keen v. State, 626 S.W.2d 309, 311-312 (Tex.Crim.App.1981); Archer v. State, 607 S.W.2d 539, 543-544 (Tex.Crim.App.1980). It is clear to us now, however, that the rule of Keen and Archenaast be abandoned as unworkable.⁴

Quo warranto proceedings are governed by statute. Under Texas Civil Practices and Remedies Code § 66.002(a), only the “attorney general or the county or district attorney of the proper county” may bring an action in the nature of quo warranto. That statute must be understood to mean what it plainly states. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). Therefore, it is not realistic to require a defendant to initiate a quo warranto proceeding.

How, then, may a defendant challenge the authority of a trial judge, who is otherwise qualified, to preside pursuant to an expired assignment? We hold that such a defendant, if he chooses, may object pretrial; if he does not, he may not object later or for the first time on appeal.

This holding is consistent with our prior holding that, in general, all but the most fundamental evidentiary and procedural rules (or “rights”) are forfeited if not asserted at or before trial.⁵ See Marin v. State, 851 S.W.2d 275, 278-280 (Tex.Crim.App.1993). A timely objection in the trial court will afford both the trial judge and the State notice of the procedural irregularity and an adequate opportunity to take appropriate corrective action. See Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977).

Appellant never complained to Judge Bur-dette that his assignment had expired. Therefore, appellant forfeited his right to challenge the authority of Judge Burdette to preside in this cause.

We affirm the judgment of the Court of Appeals.

OVERSTREET, J., concurs in the judgment of the Court. KELLER, J., files an opinion concurring ' in the judgment of the Court.

1 . Because of a backlog in the 232nd District Court, the 262nd District Court was assisting the 232nd in its case load.

2 . We dismiss appellant’s ground for review number two as having been granted improvidently. See Tex.R.App. Proc. 69.3.

3 . A challenge to the trial judge's legal qualifications may, of course, be raised for the first time on appeal. Davis v. State, 956 S.W.2d 555, 559 (Tex.Crim.App.1997); Johnson v. State, 869 S.W.2d 347, 348-349 (Tex.Crim.App.1994).

4 . When governing decisions of this Court are unworkable or badly reasoned, we are not constrained to follow them. Proctor and Lemell v. State, 967 S.W.2d 840, 845 (Tex.Crim.App.1998).

5 . Professors LaFave and Israel have written in-sightfully about the many virtues of the raise-or-forfeit rule. See 3 W. LaFave & L Israel, Criminal Procedure % 26.5(c) (1984).