Florentino Lopez, Jr. v. State ( 2000 )

NUMBER 13-97-478-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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FLORENTINO LOPEZ, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 197th District Court of Cameron County, Texas.

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O P I N I O N

Before Justices Hinojosa, Yañez, and Rodriguez Opinion by Justice Hinojosa

Appellant, Florentino Lopez, was charged by indictment with three counts of aggravated sexual assault and one count of indecency with a child. After a bench trial, the trial court found appellant guilty of the offenses charged in the indictment and assessed his punishment at: (1) forty years confinement and a $10,000 fine for count one, (2) twenty years confinement for count two, (3) twenty years confinement for count three, and (4) ten years confinement for count four. The trial court ordered that all four sentences run concurrently.

The sole issue on appeal is whether the trial judge had the authority to convict and sentence appellant. Appellant contends the record is devoid of an order assigning Cameron County Court at Law Judge Everardo Garcia to preside over appellant's felony trial in the 197th District Court of Cameron County, Texas. We reverse and remand.

A judge must have authority to preside over a case. Davis v. State, 956 S.W.2d 555, 558 (Tex. Crim. App. 1997); Johnson v. State, 869 S.W.2d 347, 349 (Tex. Crim. App. 1994). There is no constitutional or statutory authority for a statutory county court judge to preside over a matter in a district court without an assignment from an administrative judge. See Tex. Gov't Code Ann. §§ 74.054, 74.094 (Vernon 1998). The record must contain evidence of an assignment of a judge elected at one level to preside in a court of another level. See Herrod v. State, 650 S.W.2d 814, 817 (Tex. Crim. App. 1983) (no order assigning retired district judge to preside in county court).

In the case before us, appellant is not complaining of Judge Garcia's assignment or that statutory procedures were not followed in the assignment process. Instead, appellant complains the record does not show that Judge Garcia was assigned to sit in the 197th District Court at the time of his trial.

The State did not seek to supplement the record with an order of assignment. Pursuant to rule 34.5(c) of the rules of appellate procedure, this Court asked the district clerk to supplement the record with documentation, if any, of Judge Garcia's assignment. The district clerk supplemented the record with a copy of an assignment order signed on February 24, 1997 by Darrell Hester, Presiding Judge of the Fifth Administrative Judicial Region.

Judge Hester's order provides, in relevant part, as follows:

Pursuant to Section 74.056, Texas Government Code, I hereby assign the

Honorable Everardo Garcia Judge of the County Court at Law No. 1

To the 197th District Court of Cameron County, Texas

This assignment is for the period February 24, 1997, and ending February 28, 1997, provided that it shall continue thereafter so long as may be necessary for the assigned judge to complete trial of any cause begun during such period, and to pass on motions for new trial and all other matters growing out of any cause heard by the assigned judge during such period.

Appellant's trial was initially set to commence in the 197th District Court on February 24, 1997. On that day, appellant's counsel informed Judge Garcia that he could not appear for trial because he was scheduled to go to trial in another case in federal court. Judge Garcia granted a continuance and reset the case for April 14, 1997. The case was tried before Judge Garcia in April 1997.

In civil cases, an assigned judge may continue in a case if he has presided over a pretrial hearing without objection. See Bourgeois v. Collier, 959 S.W.2d 241 (Tex. App.--Dallas 1997, no writ); Money v. Jones, 766 S.W.2d 307 (Tex. App.--Dallas 1989, writ denied). Both Bourgeois and Money rely on statutory language found in section 74.053(c)⁽¹⁾ of the government code to determine whether a party has waived objection to an assigned judge. However, the court of criminal appeals has held that section 74.053 does not apply in criminal cases. Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 586-87 (Tex. Crim. App. 1993).

Judge Hester assigned Judge Garcia to sit in the 197th District Court during the week beginning February 24, 1997 and ending February 28, 1997. However, the assignment was to continue as "long as may be necessary for [Judge Garcia] to complete trial of any cause begun during such period." (Emphasis added). The task before us is to determine whether appellant's trial began during the week of February 24, 1997.

Although no Texas court has determined when a trial begins for the purposes of assignment, this Court has held that in criminal matters, a trial on the merits commences at the time that jeopardy attaches. Hinojosa v. State, 875 S.W.2d 339, 342 (Tex. App.--Corpus Christi 1994, no pet.) (interpreting Tex. Code Crim. Prod. Ann. art. 28.10 (Vernon 1989)). "Commence" and "begin" are synonymous. See Black's Law Dictionary 268 (6th ed. 1990).

The only action taken by Judge Garcia in this case during the week of February 24-28, 1997, was to grant a continuance. There is no motion for continuance in the record, and, aside from a docket entry continuing the case, the record is silent as to whether a hearing was actually held by Judge Garcia.

We hold appellant's trial did not begin during the week of February 24-28, 1997, and that Judge Garcia was without authority to preside over appellant's trial in April 1997. Appellant's sole issue is sustained.

We reverse the judgment and remand the case to the trial court for a new trial.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 17th day of August, 2000.

1. § 74.053. Objection to Assigned Judge

(c) An objection under this section must be filed before the first hearing or trial, including pretrial hearings, over which the assigned judge is to preside.

Tex. Gov't Code Ann. § 74.053(c) (Vernon 1998).