John Alexander Lopez v. State ( 2011 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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JOHN ALEXANDER LOPEZ, No. 08-10-00112-CR
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Appellant, Appeal from the
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V. Criminal District Court No. 4
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THE STATE OF TEXAS, of Tarrant County, Texas
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Appellee. (TC# 1150714D)
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OPINION
John Lopez appeals his conviction for possession with intent to deliver
methamphetamine, a controlled substance, between four and two-hundred grams. Both phases of
trial were tried to the court, and Appellant was sentenced to 5 years’ imprisonment. On appeal,
he raises two issues in which he contends the trial court violated the requirements of
Articles 1.13 and 1.15 of the Texas Code of Criminal Procedure by conducting a non-jury trial.
Affirmed.
Appellant was indicted on March 27, 2009, for two counts of possession of
methamphetamine with the intent to deliver, more than four grams, but less than two hundred
grams. Initially, the Honorable Judge Mike Thomas, of Tarrant County’s Criminal District Court
Number Four, presided over the case. On April 30, 2009, Judge Thomas acknowledged the
State’s plea bargain offer, which recommended a sentence of eight years’ imprisonment in
exchange for Appellant’s guilty plea.
On January 5, 2010, the Honorable Judge Phillip Vick, Senior District Judge of the 158th
Judicial District Court, presiding in Criminal District Court Number Four, approved Appellant’s
open guilty plea to Count I of the indictment. In the plea, Appellant acknowledged that he was
pleading guilty to a first degree felony, and that the sentencing range was five and ninety-nine
years. Appellant judicially confessed to the offense charged in Count I, waived his right to a trial
by jury, and consented to written stipulations of evidence. Judge Vick accepted the plea but
postponed making a finding of guilt until sentencing. Two days later, On January 7, 2010, the
presiding judge of the 8th Administrative Judicial Region of Texas signed an Order of
Assignment, assigning Judge Vick to Criminal District Court Number Four for a period of five
days, beginning January 11, 2010.
On March 12, 2010, Judge Thomas signed a Certificate of Proceedings indicating that
Appellant had previously entered a guilty plea in open court, and adjudicated Appellant guilty of
count one of the indictment. Appellant was sentenced to five years imprisonment by the trial
judge.
In two issues, Appellant challenges his conviction on the basis that Judge Vick did not
have the authority to accept Appellant’s jury trial waiver as the judge’s appointment to Criminal
Court Number Four did not begin until after Appellant signed the plea. Based on his conclusion
that Judge Vick did not have the authority to accept his waiver, Appellant concludes Judge
Thomas conducted a bench trial in violation of Article 1.15 of the Texas Code of Criminal
Procedure.1
1
Texas Code of Criminal Procedure Article 1.13 provides that a criminal defendant, in
non-captial felony cases, has the right to waive his right to trial by jury if upon entering his plea
the defendant personally, in writing, in open court, and be approved by the trial court. See
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Appellant’s theory of the case is premised on his conclusion that on January 5, 2010,
Judge Vick did not have authority to accept his jury trial waiver pursuant to Article 1.13 of the
Texas Code of Criminal Procedure, because his assignment to the court was not effective until
several days later. Appellant does not challenge the procedure by which he waived his right to a
jury trial, nor does he argue that Judge Vick was not legally qualified to preside over the case.
His argument is limited to the dates of Judge Vick’s assignment, as they relate to the date
Appellant signed his plea. Appellant raises this argument for the first time on appeal.
As the Court of Criminal Appeals has made clear, “all but the most fundamental
evidentiary and procedural rules (or ‘rights’) are forfeited if not asserted at or before trial.” Davis
v. State, 227 S.W.3d 733, 736 (Tex.Crim.App. 2007), quoting Wilson v. State, 977 S.W.2d 379,
380 (Tex.Crim.App. 1998). While a challenge to a trial judge’s legal qualifications may be
raised for the first time on appeal, an objection to a procedural irregularity in the assignment of
an otherwise qualified judge must be preserved through the usual mechanism. See Wilson, 977
S.W.2d at 380 (abrogating the requirement that a defendant raise such a challenge through a quo
warranto proceeding). Preservation of a complaint for appellate purposes generally requires that
the Appellant demonstrate that a timely and specific complaint was made to the trial court, and
that the court entered a ruling. See TEX .R.APP .P. 33.1(a).
Appellant’s brief fails to cite to any passage in the record where he objected to Judge
Vick presiding over the plea proceedings, and we have been unable to locate the same in our
TEX .CODE CRIM .PROC.ANN . art. 1.13(a)(Vernon 2005). Similarly, Article 1.15 provides that no
defendant shall be convicted of a felony except “upon the verdict of a jury” unless the defendant
has entered into a knowing and proper waiver except as prescribed by the preceding sections.
See TEX .CODE CRIM .PROC.ANN . art. 1.15 (Vernon 2005).
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review of the proceedings. Because Appellant failed to object in the trial court, the argument he
now attempts to raise on regular appeal is waived. See Wilson, 977 S.W.2d at 380-81. As this is
the only argument challenging the validity of Appellant’s waiver under Article 1.13, the waiver
will stand, and Issue One is overruled.
Furthermore, having determined that Appellant’s argument regarding Judge Vick’s
authority to accept his waiver has been waived, there is no basis for Appellant’s argument that
Judge Thomas conducted a bench trial, and adjudicated Appellant guilty in violation of
Article 1.15. As this is the only basis on which Appellant challenges Judge Thomas’s guilty
finding, Issue Two is also overruled.
Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.
January 26, 2011
DAVID WELLINGTON CHEW, Chief Justice
Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)
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