David Weatherspoon v. the State of Texas

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-20-00130-CR
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DAVID WEATHERSPOON, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 1A District Court
Tyler County, Texas
Trial Cause No. 13,226
__________________________________________________________________
MEMORANDUM OPINION
In this appeal, we need only decide whether the appellant, David
Weatherspoon, complied with the rule of error preservation, which
requires that parties first raise the complaint in the trial court before
1
they may later complain about the error in an appeal. 1 Because we
conclude Weatherspoon failed to comply with that rule, we will affirm.
Background
In a single issue, Weatherspoon argues the trial court abused its
discretion when, in January 2020, it appointed an attorney pro tem to
prosecute him in Trial Court Cause Number 13,226. Weatherspoon
argues the trial court’s appointment of the attorney pro tem violated the
separation of powers clause, Article II, section 1 of the Texas
Constitution.2
Article II, section 1 provides:
The powers of the Government of the State of Texas shall be
divided into three distinct departments, each of which shall
be confided to a separate body of magistracy, to wit: those
which are Legislative to one, those which are Executive to
another, and those which are Judicial to another; and no
person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to
either of the others, except in the instances herein expressly
permitted. 3
1Tex. R. App. P. 33.1. (requiting that parties generally make their
complaint known when in the trial court through a timely request,
objection or motion and obtain a ruling on the request as a prerequisite
to presenting the complaint for appellate review).
2Tex. Const. art. II, § 1.
3Id.
2
Turning to the record, it shows that in June 2018 and August 2018,
the interim District Attorney of Tyler County, Anne Pickle, deputized two
assistants to act as assistant district attorneys, Nick Moutos and Ekua
Assabill, authorizing each to perform any and all acts of the District
Attorney’s Office in Trial Court Cause Number 13,226. 4 In November
2019, Lucas Babin, who was by then the duly elected District Attorney of
Tyler County, re-deputized Moutos as an assistant district attorney in
the case. That said, there is nothing in the record to indicate that Babin
terminated Assabill’s authority to act as another assistant based on her
appointment by Pickle in 2018. Even so, in January 2020, the record
shows that Assabill signed an oath of office stating that she would
“faithfully execute the duties of the office of CRIMINAL DISTRICT
ATTORNEY PRO TEM of the State of Texas[.]” Although we have no
4While not in the record, we are aware of and judicially notice that
the elected District Attorney of Tyler County was removed from office in
2018 and that after that happened, Pickle became the interim DA.
https://www.12newsnow.com/article/news/local/tyler-county-da-removed
-from-office/502-587254455 (last checked August 19, 2022); See Office of
Pub. Util. Counsel v. Pub. Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex.
1994) (“A court of appeals has the power to take judicial notice for the
first time on appeal.”); see also Tex. R. Evid. 201(b) (allowing a court to
judicially notice a fact that is not subject to reasonable dispute).
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reporter’s record showing that Assabill appeared in court and that the
trial court appointed her attorney pro tem or even acknowledged her
purported role as attorney pro tem, we note the record does contain a
typed entry on the trial court’s docket sheet, dated January 17, which
states: “OATH OF OFFICE (EKUA ASSABILL)/AC[.] Even so, the
initials “AC,” which are typed next to the entry “Oath of Office,” are not
the initials of the District Judge who presided over Trial Court Cause
Number 13,226. Instead, the initials “AC” appear to be those of a clerk.
In March 2020, the trial court called the case against Weatherspoon
to trial. Moutos and Assabill appeared and prosecuted the case based on
the authority delegated to them by the interim and elected District
Attorneys of Tyler County. On appeal, Weatherspoon argues that the
trial court erred in appointing Assabill to act as an attorney pro tem in
his case because she did not meet the conditions required of that office
under article 2.07(a) of the Texas Code of Criminal Procedure. 5 Under
article 2.07, a trial court is authorized to appoint an attorney pro tem
whenever “an attorney for the State is disqualified to act in any case or
proceeding, is absent from the county or district, or is otherwise unable
5See Tex. Code Crim. Proc. Ann. art. 2.07(a).
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to perform the duties of the attorney’s office, or in any instance where
there is no attorney for the state[.]”6 Because Weatherspoon claims that
none of these requirements were met, he concludes the trial court’s
appointment of Assabill as an attorney pro tem constructively removed
Babin as the elected District Attorney and affected his substantial rights
under the separation of powers clause, and he claims he is entitled to a
ruling from this Court vacating the judgment of conviction and ordering
the case dismissed since we must, he says, presume he was harmed.
Analysis
On this record, it’s not clear that an attorney pro tem even
participated in Weatherspoon’s prosecution. The record contains no
motion seeking a recusal of Babin as the District Attorney in Trial Court
Cause Number 13,226, no order by the District Court approving Babin’s
recusal, and no order by the District Court appointing Assabill to act as
attorney pro tem in the case. Based on what is in the record before us, it
appears Assabill acted at all times in Weatherspoon’s case under her
appointment as an assistant special prosecutor, first by interim District
Attorney Pickle, and then by elected District Attorney Lucas Babin since
6Id.
5
nothing appears in the record to show that he withdrew the permission
Pickle extended allowing Assabill to participate as an assistant special
prosecutor in Weatherspoon’s case.
Even if Assabill prosecuted Weatherspoon after the trial court’s
purported appointment of her to the office of attorney pro tem (which we
doubt), Weatherspoon failed to preserve his complaint that Assabill did
not qualify for that office under article 2.07 because he failed to raise his
complaint with the trial court and obtain a ruling on his complaint when
the trial court could have possibly corrected any procedural deficiency
with her appointment. 7 Citing Marin v. State, Weatherspoon claims he
was not required to bring the alleged error to the trial court’s attention,
and he suggests the trial court’s purported error appointing Assabill as
attorney pro tem may be reached by the Court despite his lack of objection
because the trial court’s error amounts to “the denial of absolute,
systemic requirements which def[ies] a harm analysis.”
We disagree. Almost every right—whether constitutional or
statutory—is waivable unless the party objects, moves for relief, or
7Tex. R. App. P. 33.1.
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requests relief the record shows the court below denied. 8 Even so, the
general rule requiring error to be preserved in the trial court is subject
to two relatively small exceptions, as follows: “violations of ‘rights which
are waivable only’ and denials of ‘absolute systemic requirements.’”9
Waivable-only rights are “‘rights of litigants which must be
implemented by the system unless expressly waived.’” 10 That said, when
we examine the language in article 2.07 of the Code of Criminal
Procedure, we find nothing in it revealing any legislative intent to excuse
a party from objecting should a court err in the procedures set out in the
statute for appointing someone to act in a case as an attorney pro tem.11
And as to absolute systemic requirements, the Court of Criminal Appeals
has explained these requirements exist “only in a very limited class of
cases: a total deprivation of the right to counsel, lack of an impartial trial
judge, unlawful exclusion of grand jurors of defendant’s race, the right to
8Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986).
9Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002)
(quoting Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993),
overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim.
App. 1997)).
10Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004)
(quoting Marin, 851 S.W.2d at 279)); Saldano, 70 S.W.3d at 888.
11Tex. Code Crim. Proc. Ann. art. 2.07.
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self-representation at trial, the right to a public trial,” and in cases where
the trial court gave the jury an erroneous instruction defining the
term reasonable doubt.12 Those are not the types of alleged errors that
Weatherspoon claims were made here.
Finally, this Court has already explained that article 2.07 is subject
to the general rule of error preservation, a rule that requires the party to
preserve error by making his objection known to the trial court before he
will be allowed to raise it the first time in his appeal. In Modica v. State,
we held that article 2.07 “does not appear to be the type of evidentiary or
procedural rule that belongs to an accused which must be protected by
the system unless expressly waived, unlike the language of the rule at
issue in Marin.” 13 So even assuming the trial court did not follow the
procedures set out in article 2.07 when appointing Assabill to act as an
attorney pro tem in Weatherspoon’s case, by failing to object to the
appointment, Weatherspoon preserved nothing for our review. 14 For all
these reasons, we overrule Weatherspoon’s sole issue.
12Mendez, 138 S.W.3d at 340.
13Modica v. State, 151 S.W.3d 716 (Tex. App.—Beaumont 2004, pet.
ref’d).
14Tex. R. App. P. 33.1(a); Modica, 151 S.W.3d at 721.
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Conclusion
Having overruled Weatherspoon’s issue, the trial court’s judgment
is
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on March 23, 2022
Opinion Delivered August 31, 2022
Do Not Publish
Before Kreger, Horton and Johnson, JJ.
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