Davis v. State, 2-95-341-CR

• Decision Date: 08 August 1996
• Docket Number: No. 2-95-341-CR,2-95-341-CR
• Citation: 928 S.W.2d 289
• Parties: Tyrone Eugene DAVIS, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 289

928 S.W.2d 289

Tyrone Eugene DAVIS, Appellant, v. The STATE of Texas, State.

No. 2-95-341-CR.

Court of Appeals of Texas,

Fort Worth.

Aug. 8, 1996.

Rehearing Overruled Sept. 19, 1996.

Sue Walker, Fort Worth, for Appellant.

Tim Curry, Criminal District Attorney, Betty Marshall and Charles M. Mallin, Assistant Chiefs of Appellate Section, and Steven W. Conder, Assistant Criminal District Attorney, Fort Worth, for State.

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

OPINION

LIVINGSTON, Justice.

Appellant Tyrone Eugene Davis challenges his conviction for possession of cocaine because he contends that the magistrate who accepted the guilty plea lacked jurisdiction. We sustain Davis's sole point of error.

BACKGROUND

Davis was indicted on March 24, 1992 for possession of cocaine of less than twenty-eight grams. He entered into an agreement with the State in which he would plead guilty and the State would recommend that his two- to twenty-year sentence be probated for eight years. Among the conditions of probation was the requirement that Davis report regularly to his probation officer. A magistrate signed the probation order on March 24, 1992. The district court's order referring and adopting the actions of the magistrate was file-stamped on March 24, 1992, but was dated March 26, 1992.

On April 25, 1995, the State filed a motion to revoke Davis's probation, alleging that he had failed to report to his probation officer as required. At an August 3, 1995 hearing on the probation revocation, Davis pled "true" to the allegation. The trial court revoked Davis's probation and assessed punishment at confinement for eight years in the Institutional Division of the Texas Department of Criminal Justice.

POINT OF ERROR

In his sole point of error, Davis complains that his conviction is void because the magistrate lacked jurisdiction to hear his March 24, 1992 guilty plea. He contends that in the absence of a timely order of referral, the magistrate possessed no jurisdiction over his case. The State responds that Davis failed to preserve any error because he did not object at the time of the plea bargain hearing and that alternatively, the trial court's subsequent referral and adoption order cured any error.

The Texas Government Code authorizes criminal district judges in Tarrant County to appoint magistrates. TEX. GOV'T CODE ANN. § 54.651 (Vernon 1988). The district court judge may refer to the magistrate criminal cases involving certain types of proceedings. Id. § 54.656. A negotiated plea of guilt before the court is one of the proceedings which may be referred to a magistrate. Id. To refer "one or more cases to a magistrate, a judge must issue an order of referral specifying the magistrate's duties." Id. § 54.657(a). A criminal law magistrate is not a district court judge and possesses no standing jurisdiction to hear cases but instead must obtain jurisdiction by virtue of a referral order from the district court. Id. § 54.657. The order of referral may, among other things, "designate proceedings for more than one case over which the magistrate may preside." Id. § 54.657(a)(5). The court of criminal appeals has previously approved a general order of referral as a "proper vehicle under the act." Ex parte Stacey, 709 S.W.2d 185, 190, 192 (Tex.Crim.App.1986) (op. on reh'g). There is "no requirement to name a particular magistrate or issue an order of referral separately for each case." Id. at 190-91. However, the court of criminal appeals recommends as a better practice that "an individual form for each case referred to a magistrate be prepared and completed and placed in the file of the case." Spindler v. State, 740 S.W.2d 789, 792 (Tex.Crim.App.1987).

The question of the jurisdiction of the magistrate to act may be raised at any time, because judicial action without jurisdiction is void. Id. at 791; ¹ see Johnson v. State, 869 S.W.2d 347, 348-49 (Tex.Crim.App.1994). Generally, an appeal from an order revoking probation cannot include review of the original conviction. Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim.App.1990). But, if fundamental error occurred in the original conviction so as to render that proceeding void, the original conviction may be collaterally attacked. Trcka v. State, 744 S.W.2d 677, 680 (Tex.App.--Austin 1988, pet. ref'd). Because Davis claims fundamental error occurred at the time of the 1992 hearing, we reach the merits of his complaint. ²

The record affirmatively shows that the order of referral to the magistrate was not signed until March 26, 1992, two days after Davis's plea hearing. The State apparently concedes that the referral was made after the plea was heard by the magistrate, because it argues that "regardless of when [it] was made by the trial court, the conviction should be considered valid" because the trial court had to review and adopt the magistrate's findings in order for the conviction to become legally binding. The State's contention is that the subsequent referral and adoption order cured any defect in the magistrate's authority.

Neither Davis nor the State provides any authority...