Alexander v. State, 2-94-487-CR

• Decision Date: 27 July 1995
• Docket Number: No. 2-94-487-CR,2-94-487-CR
• Citation: 903 S.W.2d 881
• Parties: Antwain ALEXANDER, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 881

903 S.W.2d 881

Antwain ALEXANDER, Appellant, v. The STATE of Texas, State.

No. 2-94-487-CR.

Court of Appeals of Texas,

Fort Worth.

July 27, 1995.

Rehearing Overruled Sept. 7, 1995.

Charles Thorn, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., Betty Marshall and Charles M. Mallin, Asst. Chiefs of the Appellate Section, Danielle A. LeGault, Barry Shelton and Mike Parrish, Assistants, Fort Worth, for appellee.

Before CAYCE, C.J., and DAY and BRIGHAM, JJ.

OPINION

CAYCE, Chief Justice.

Antwain Alexander appeals his conviction and twenty-year sentence for the offense of aggravated robbery with a deadly weapon. The trial was held in "Trial Room B" in the Tarrant County Justice Center, Fort Worth, Tarrant County, Texas. Judge Harry Hopkins (retired) presided over the trial.

In three points of error, Alexander complains that the existence and operation of "Trial Room B" violates the separation of powers provision of the Texas Constitution; that Judge Hopkins was assigned to conduct the trial in "Trial Room B" in violation of the constitutional requirement that the judges of all courts of county-wide jurisdiction be elected to a four-year term; and, that a question in the jury questionnaire was unconstitutional because it asked the venire to identify their religious affiliation, if any.

We overrule the points of error and affirm the judgment below.

Alexander robbed Freddie Davis at gunpoint. He took Davis's car, wallet and groceries. Alexander was later apprehended by the police following a high-speed chase. The indictment charging Alexander with aggravated robbery with a deadly weapon was returned to the 372nd District Court, Tarrant County, Texas. The cause was then transferred to the 213th District Court, Tarrant County, Texas, the Honorable Robert Gill, presiding. Judge Hopkins conducted the trial pursuant to assignment by the Honorable Clyde Ashworth, presiding judge of the Eighth Administrative Judicial Region of Texas.

In his first point of error, Alexander argues that his conviction should be reversed on jurisdictional grounds because the existence and operation of Trial Room B violates the separation of powers provision of article II, section 1 of the Texas Constitution. He contends that Trial Room B was created by the county commissioners' court and that no legislative act authorizes its existence or operation. In his second point of error, Alexander contends that Judge Hopkins had no judicial power to conduct the trial in Trial Room B because article V, section 30 of the Texas Constitution requires that all judges of courts of county-wide jurisdiction hold office through election to a four-year term and, as a retired judge, Judge Hopkins is not "elected" by the voters. Both complaints are contrary to established rules of law.

It is well-settled that trials conducted in impact courts do not violate the Texas Constitution. Hunnicutt v. State, 523 S.W.2d 244, 245 (Tex.Crim.App.1975); Zamora v. State, 508 S.W.2d 819, 822 (Tex.Crim.App.1974); Griffin v. State, 749 S.W.2d 497, 499-500 (Tex.App.--Fort Worth 1988, pet. ref'd) (op. on reh'g); see also Reed v. State, 500 S.W.2d 137, 138 (Tex.Crim.App.1973) (upholding constitutionality of annex courts). "Impact courts" are not courts; rather, they are merely intended to serve as extensions of lawfully designated trial courts. Armstrong v. State, 719 S.W.2d 668, 669 (Tex.App.--Fort Worth 1986, no pet.); see Banks v. State, 662 S.W.2d 616, 617 (Tex.App.--Houston [14th Dist.] 1983, pet. ref'd). "The name 'Impact Court' is nothing more than a term of convenience." Armstrong, 719 S.W.2d at 669.

It is equally well-established that a retired judge sitting by administrative assignment possesses all the powers of the court to which he is assigned. TEX.GOV'T CODE ANN. § 74.052 (Vernon 1988); Herrod v. State, 650 S.W.2d 814, 817 (Tex.Crim.App.1983) (op. on reh'g); Alfaro v. State, 638 S.W.2d 891, 895 (Tex.Crim.App.1982); Pendleton v. State, 434 S.W.2d 694, 696-97 (Tex.Crim.App.1968); see Tyrone v. State, 854 S.W.2d 153, 156 (Tex.App.--Fort Worth 1993, pet. ref'd); Griffin, 749 S.W.2d at 499; see also TEX. CONST. art. V, § 11 ("District Judges may exchange districts, or hold courts for each other when they may deem it expedient"). Absent a showing to the contrary, it is presumed that the assignment was properly made in accordance with all statutory requirements. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 854 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert. dism'd, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988).

The record conclusively shows that Judge Hopkins was duly assigned to preside over Alexander's trial in the 213th District Court. As a duly assigned visiting judge of the 213th District Court, Judge Hopkins had full power and authority under the laws and constitution of this state to conduct Alexander's trial in Trial Room B. There is no evidence that Trial Room B was used for any purpose other than another courtroom to conduct the business of the 213th District Court. Points of error one and two are overruled.

In his third point of error, Alexander challenges the constitutionality of a question in the jury questionnaire which sought to determine the venire's membership, if any, in "clubs, groups, church, et cetera, in which you actively participate." Alexander contends that this question was improper because it elicited information about prospective jurors' religious beliefs which the State may have used for improper religion-based peremptory challenges. See Casarez v. State, No. 1114-93, slip op. at 20, --- S.W.2d ----, ---- (Tex.Crim.App. Dec. 14, 1994) (submitted on reh'g Apr. 26, 1995) (use of peremptory challenge to strike prospective juror on basis of religious beliefs is unconstitutional under Equal Protection Clause). Alexander does not complain that a venireperson was actually challenged or stricken from the panel on the basis of their religious beliefs.

Although Alexander couched his objection to the jury questionnaire in terms of "separation of church and state," ¹ it is clear that the thrust of his objection was that the question would result in discrimination in jury selection in violation of the Equal Protection Clause. ² As a predicate to complaining of discrimination in jury selection, a defendant ordinarily must show that a prospective juror was stricken through the discriminatory use of a peremptory...