Brian Todd Dekle v. State ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00088-CR
BRIAN TODD DEKLE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2016-324-C1
MEMORANDUM OPINION
The jury convicted Brian Dekle in Count Nos. 1, 3, 4, and 5 of the indictment for
the offense of aggravated sexual assault of a child and assessed punishment at 74 years
confinement for each count. The jury convicted Dekle in Counts 6 and 8 for the offense
of sexual assault of a child and assessed punishment at 20 years confinement for each
count. The jury convicted Dekle in Count 9 for the offense of indecency with a child by
contact and assessed punishment at 20 years confinement. We affirm.
In the first issue, Dekle complains that the trial court was “without power” to hear
his case. Dekle was tried to a jury on February 19, 2019 through February 21, 2019. Judge
Strother, the elected judge of the 19th District Court of McLennan County, began the trial
and presided over the trial until the conclusion of the evidence. Judge Hodges presided
over the conclusion of the trial, including closing arguments, reading the charge, and
receiving the verdict. Judge Hodges was appointed by the McLennan County
Commissioners Court to act as an associate judge for all courts of McLennan County.
Judge Hodges was assigned as a visiting judge for all courts of McLennan County by
Presiding Judge Billy Ray Stubblefield for a period beginning October 16, 2018 through
September 30, 2019.
Dekle argues that Judge Hodges was not qualified to preside over the trial. Dekle
contends that Hodges was hired as an associate judge for McLennan County and that his
employment prevents him from serving as a visiting judge. Jurisdiction is something
possessed by courts, not by judges. Davis v. State, 956 S.W.2d 555, 557 (Tex. Crim. App.
1997). Dekle does not argue that the trial court did not have jurisdiction to hear his case.
The qualification of the trial judge could have been raised at trial. See Ex parte
Richardson, 201 S.W.3d 712, 714 (Tex. Crim. App. 2006). Dekle did not object to Judge
Hodges presiding over a portion of the trial. Dekle was aware that Judge Hodges would
preside over the closing arguments and jury deliberations, but he did not raise any
objection to Judge Hodges. Trial counsel for Dekle in fact stated, “…we don’t have any
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problem with Judge Hodges coming in tomorrow.” Because Dekle did not object to the
qualifications of Judge Hodges at trial, we find that he has not preserved his complaint
for review. See Ex parte Richardson, 201 S.W.3d at 714.
Dekle raised a second issue in his initial brief. However, on November, 5, 2019,
his counsel filed an abandonment of that issue. Therefore, we will not address that issue.
We affirm the trial court’s judgment.
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
(Chief Justice Gray concurring)*
Affirmed
Opinion delivered and filed January 29, 2020
Do not publish
[CRPM]
*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.)
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