Arredondo v. State, 04–12–00278–CR.

• Decision Date: 23 October 2013
• Docket Number: No. 04–12–00278–CR.,04–12–00278–CR.
• Parties: Jose Eduardo ARREDONDO, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

406 S.W.3d 300

Jose Eduardo ARREDONDO, Appellant

v.The STATE of Texas, Appellee.

No. 04–12–00278–CR.

Court of Appeals of Texas,

San Antonio.

June 26, 2013.

Discretionary Review Refused Oct. 23, 2013.

Elizabeth Martinez, Law Office of Elizabeth Martinez, PLLC, J. Eduardo Pena, Laredo, TX, for Appellant.

David L. Reuthinger Jr., Webb County District Attorney's Office, Laredo, TX, for Appellee.

Sitting: SANDEE BRYAN MARION, Justice, MARIALYN BARNARD, Justice, LUZ ELENA D. CHAPA, Justice.

OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

A jury convicted appellant, Jose Eduardo “Lalo” Arredondo, of one count of capital murder, one count of aggravated kidnapping, and two counts of aggravated sexual assault. The trial court sentenced appellant to life on each count, with the life sentences on the two counts of aggravated sexual assault to run consecutive and cumulative to each other, and the remaining life sentences to run concurrently. Appellant was a juvenile at the time the offenses were committed and was eighteen years of age on the date the judgment was entered. In two issues on appeal, appellant contends (1) the trial court erred in denying his motion to suppress the autopsy report and testimony of the medical examiner because the examiner failed to file an oath of office prior to conducting the autopsy of the victim, and (2) the trial court's entry of two consecutive life sentences violates the Eight and Fourteenth Amendments of the United States Constitution, and contravenes the intent of the Texas Legislature.

BACKGROUND

This is a horrific crime that resulted in the violent sexual assault and murder of a two-year-old child. Because the facts of the case are gruesome and are not particularly relevant to the resolution of appellant's issues on appeal, we will not go into them anymore than is necessary.

MOTION TO SUPPRESS

Appellant contends the Webb County medical examiner was a “public officer” who must file the oath of office described in Article 16, Section 1(a) of the Texas Constitution prior to conducting the autopsy of a victim. Because she had not done so prior to conducting the autopsy in this case, appellant argued her actions were void; therefore, his pretrial motion to suppress the autopsy, testimony regarding the autopsy, and DNA test results should have been granted.

Article 49.25 of the Texas Code of Criminal Procedure sets forth the requirements and duties of the medical examiner. SeeTex.Code Crim. Proc. Ann. art. 49.25 (West 2006). Section 1 of article 49.25 provides: “Subject to the provisions of this Act, the Commissioners Court of any county having a population of more than one million and not having a reputable medical school ... shall establish and maintain the office of medical examiner, and the Commissioners Court of any county may establish and provide for the maintenance of the office of medical examiner.” Id. § 1. Section 2 details the appointment of the medical examiner and provides: “The commissioners court shall appoint the medical examiner, who shall serve at the pleasure of the commissioners court.” Id. § 2. The Code contains no oath requirement.

Article 16, Section 1(a) of the Texas Constitution provides the oath of office required for “elected and appointed officers.” SeeTex. Const. art. XVI, § 1(a). The section states: “All elected and appointed officers, before they enter upon the duties of their offices, shall take the following Oath or Affirmation: ‘I, ___, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ____ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.’ ” Id. Appellant argued at trial, and argues now on appeal, that the medical examiner is a “public officer” because the medical examiner is “appointed” by the commissioner's court, and, therefore, is an “appointed officer” who must take and file the oath with the office of the county clerk.

“An individual is a public officer if any sovereign function of the government is conferred upon that individual to be exercised for the benefit of the public largely independent of the control of others.” Prieto Bail Bonds v. State, 994 S.W.2d 316, 320 (Tex.App.-El Paso 1999, pet. denied). “In other words, a public ‘officer’ is authorized by law to independently exercise functions of either an executive, legislative, or judicial character, and the exercise of this power by the officer is subject to revision and correction only according to the standing laws of this state.” State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex.Crim.App.1994). “A public employee, in contrast, is a person in public service whose duties are generally routine, subordinate, advisory, and as directed.” Id.

Although we have found no case specifically discussing whether a county medical examiner is a “public officer” requiring the Constitutional oath, many cases have interpreted whether a variety of positions are considered a “public office.” See Aldine Indep. School Dist. v. Standley, 154 Tex. 547, 553, 280 S.W.2d 578, 582–83 (1955) (tax assessor-collector of school district not an officer; although he performed a sovereign function, statute creating office put that power in the school board, not in the office of the assessor-collector); Pirtle, 887 S.W.2d at 931 (an assistant district attorney is a public employee, not a public official); Krier v. Navarro, 952 S.W.2d 25, 26 (Tex.App.-San Antonio 1997, writ denied) (elections administrator appointed pursuant to section 31.032 of the Texas Election Code not a public officer, but a “public employee”); Harris Cnty. v. Schoenbacher, 594 S.W.2d 106, 111 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.) (juvenile probation officer not a “public officer” because he did not exercise power “largely independent” of juvenile board).

Appellant relies on two cases—one from the Eighth Court of Appeals and one from the Court of Criminal Appeals—for the proposition that the failure of a medical examiner to take the Constitutional oath renders her actions void or voidable. First, appellant cites Prieto, in which the court of appeals decided whether the Constitutional oaths required of all “elected and appointed” officers apply to retired judges assigned to courts. Prieto, 994 S.W.2d at 318. The court focused on the “nature of the judge's function as an ‘officer’ rather than on the nature of the ‘office’ held.” Id. at 320. In concluding that senior judges are indeed “public officers” who must take the Constitutional oath, the court reasoned:

Specifically, the authorization to pronounce judgment and to adjudicate the rights of parties appearing in court has been held to be a sovereign function of the government and a mark of public office. Senior judges ... though they hold no true permanent office ... are nevertheless authorized to function as judges and as such are entrusted with independent and sovereign powers.

Id.

In the second case on which appellant relies, French v. State, 572 S.W.2d 934, 939 (Tex.Crim.App.1977), the Court of Criminal Appeals concluded a search warrant issued by a judge who had been appointed as municipal judge was void because the judge had not taken the oath of office. The Court held, “[w]ithout the taking of the oath prescribed by the Constitution of this State, one cannot become either a de jure or de facto judge, and his acts as such are void.” Id.

Here, at the pretrial hearing on appellant's motion to suppress, Dr. Stern testified to the following: She works under the Texas Code of Criminal Procedure, which allows her to remove decedents from scenes in certain circumstances as outlined by the Code and she has no duties independent of those prescribed in the Code. As dictated by law, her job “is to determine cause and manner of death,” and she makes the decision of whether to perform an autopsy independently. Dr. Stern has five supervisors—the Webb County Judge and four county commissioners. She testified, “[t]hey supervise every function of my department, everything from my employees to who I can hire, how many employees I can have, what my work schedule can be, what my budget is, how I use that budget.” She testified she works under “their direct supervision” and receives “numerous” calls during the week regarding her job from her supervisors. She has an “official evaluation” by the commissioners every year and they determine whether she can be appointed for another year.

With Dr. Stern's testimony in mind, we believe both cases appellant cites are distinguishable. Prieto and French concern judges performing sovereign functions of the government, adjudicating the rights of others, without taking the required Constitutional oath. There is no question judges are considered “public officers” for purposes of the Constitution. See Prieto, 994 S.W.2d at 320 (holding senior judges must take oaths and stating “adjudicat[ing] the rights of parties appearing in court has been held to be a sovereign function of the government and a mark of public office.”); Thompson v. City of Austin, 979 S.W.2d 676, 682 (Tex.App.-Austin 1998, no pet.)(“Entrusted with independent and sovereign powers, judges are public officers ....”). The office of a judge is marked with “the indicia of public office: the judge is a member of the judiciary authorized to pronounce judgment and to adjudicate the rights of parties appearing in court; the judge occupies a position of responsibility to the public and is governed by a fixed term of office with specific removal provisions; the judge must meet statutory qualifications for holding the position and is required to take an oath of office.” Thompson, 979 S.W.2d at 683.

In contrast, we do not believe determining the cause and manner of death of an individual is considered performing a “sovereign function” of the government that is “largely independent of the control of others,” so as to qualify a...