Sholars, Willie Clifton v. State ( 2003 )

Affirmed and Memorandum Opinion filed May 29, 2003

Affirmed and Memorandum Opinion filed May 29, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00138-CR

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WILLIE CLIFTON SHOLARS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 886,348

M E M O R A N D U M   O P I N I O N

Appellant Willie Clifton Sholars challenges his aggregate-theft conviction, arguing that the applicable assignment order required that he be sentenced by the visiting judge who heard his guilty plea.  We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged by indictment with aggregate theft of more than $200,000.  Without an agreed recommendation as to sentencing, appellant pleaded guilty in the 228th District Court of Harris County when the Honorable Mary Bacon was presiding.  When appellant pleaded guilty, Judge Bacon was serving as a visiting judge in the trial court.  Judge Bacon withheld adjudication of guilt and sentencing so that a presentence investigation could be conducted.  After the Harris County Community Supervision and Corrections Department prepared a presentence investigation report, appellant appeared again in the 228th District Court of Harris County, but this time the Honorable Ted Poe, the duly elected and sworn judge of that court, was presiding.  Appellant objected to proceeding further before Judge Poe, arguing, among other things, that Judge Bacon was required to assess punishment.  Judge Poe overruled appellant=s objection, found appellant guilty of the offense, and, after finding the enhancement paragraph to be true, assessed punishment at thirty years= confinement in the Institutional Division of the Texas Department of Criminal Justice and a $1,000 fine.

II.  ANALYSIS AND DISCUSSION

In his sole issue, appellant argues that Judge Bacon was required to preside over the remaining proceedings in the trial court based on an assignment order.^[1]  Appellant alleges that this order assigned Judge Bacon to the 228th District Court of Harris County for a period of one week, during which appellant alleges he pleaded guilty.  Appellant also asserts that the assignment order states that this assignment would Acontinue after the specified period of time as may be necessary for the assigned Judge to complete trial of any cases or cases begun during this period, and to pass on motions for new trial and all other matters growing out of cases tried by the Judge herein assigned during this period.@  Appellant claims that this language required Judge Bacon to preside over the remaining proceedings, even after the one-week period expired.

A visiting judge=s term depends on the language of the assignment order.  In re Republic Parking Sys., Inc., 60 S.W.3d 877, 879 (Tex. App.CHouston [14th Dist.] 2001, orig. proceeding). The appellate record in this case does not contain the assignment order  upon which appellant bases his sole issue on appeal.^[2]  An appellate court cannot review contentions that depend on factual assertions not contained within the record.  Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996).  Assertions in an appellate brief that are not supported by evidence in the record, cannot be accepted as fact.  Id.  Disposition of appellant=s issue depends entirely on the language of an assignment order not contained in the record.  Therefore, we are in no position to review it and overrule it on this basis.

Further, even presuming the assignment order was in the appellate record and read as appellant indicates in his brief, appellant=s complaint still would lack merit.  This court previously has stated that a defendant does not have the right to choose his judge and that Aeven when one judge presides at trial, a defendant is not entitled to have that same judge pronounce sentence.@  Benjamin v. State, 874 S.W.2d 132, 134 (Tex. App.CHouston [14th Dist.] 1994, no pet.) (rejecting involuntariness claim and finding it proper for a different judge to pronounce sentence other than the one who heard appellant=s plea of no contest). Appellant does not assert that Judge Bacon was assigned to this case specifically;  rather, he claims that the assignment order was for the one-week period of time during which appellant pleaded guilty.  See In re Republic Parking Sys., Inc., 60 S.W.3d at 879 (discussing the two typical types of assignment orders). Although the assignment order described by appellant might have given Judge Bacon the authority to proceed with adjudication of guilt and sentencing, such an order would not have given Judge Bacon exclusive authority and would not have deprived Judge Poe of his authority to proceed in this case.  See Davis v. Crist Indus., Inc., 98 S.W.3d 338, 341 (Tex. App.CFort Worth 2003, no pet. h.) (overruling In re Cook Children=s Med. Ctr. case, relied on by appellant, and explaining that absent case-specific assignment order or other language in assignment order conferring exclusive authority, ordinary assignment order for a specific period of time allows duly elected and sworn judge to exercise authority over case and complete trial of the case, even after trial had begun with visiting judge presiding); Beard v. Beard, 49 S.W.3d 40, 49B50 (Tex. App.CWaco 2001, pet. denied) (disagreeing with assertion that two trial judges cannot have authority over the same case at the same time); Eubanks v. State, 11 S.W.3d 279, 281 (Tex. App.CTexarkana 1999, no pet.) (holding duly elected and sworn judge had authority to sign judgment, even though visiting judge heard the motion to revoke and pronounced judgment in open court); see also Benjamin, 874 S.W.2d at 134. 

Having overruled appellant=s sole issue, we affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed May 29, 2003.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b). 

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^[1]  The State argues that appellant did not preserve error on this issue; however, after reviewing the record, we conclude that appellant preserved error by sufficiently asserting his complaint in the trial court and obtaining a ruling on it.

^[2]  The quote in the preceding paragraph of this opinion was from appellant=s brief, in which he allegedly quotes the assignment order, not from anything in the record.