Roy v. State
| Citation | 813 S.W.2d 532 |
| Decision Date | 15 May 1991 |
| Docket Number | No. 05-89-00793-CR,05-89-00793-CR |
| Parties | James ROY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Ronald D. Wells, Gary A. Udashen, Dallas, for appellant.
Sharon Batjer, Dallas, for appellee.
Before ENOCH, C.J., and BAKER and KINKEADE, JJ.
OPINION ON RECONSIDERATION ON PETITION FOR DISCRETIONARY REVIEW
Pursuant to rule 101 of the Texas Rules of Appellate Procedure, we withdraw our earlier opinion issued on February 7, 1991, and substitute the following opinion. TEX.R.APP.P. 101.
James Roy appeals his conviction for felony escape. After a jury trial, the jury assessed punishment at twenty years' confinement. In ten points of error, Roy claims that (1) the presiding judge improperly presided over the trial; (2) the trial court erred when it overruled his objection to the State's use of peremptory challenges to exclude African-Americans from the jury, when it allowed the admission of uncertified penitentiary packets to prove a previous conviction, and when it allowed the admission of hearsay evidence; and (3) the evidence is insufficient to support the verdict or the second paragraph of the indictment. Sufficient evidence exists to confirm the conviction, but because the trial court allowed the erroneous admission of an uncertified judgment and sentence at the punishment phase of trial, we reverse and remand for further proceedings. TEX.CODE CRIM.PROC.ANN. art. 44.29(b) (Vernon 1981).
On May 27, 1988, Roy, a pre-parolee transfer from the Texas Department of Corrections, walked away from the Dallas County Residential Center. Norman Smith, a parole officer employed by the State Board of Pardons and Paroles, testified that the Center was Roy's Texas Department of Corrections unit of assignment. Dallas Police Officer Daniel Hebert testified that he arrested Roy on January 17, 1989, after determining that a valid warrant existed for his arrest for felony escape from the Texas Department of Corrections. The indictment alleged that Roy:
knowingly, and intentionally, after conviction of the offense of Burglary, a felony, and while confined in a penal intitution [sic], to-wit: the Dallas County Residential Center, 3949 Maple Avenue, Dallas, Dallas County, Texas, escape from custody, ...
The indictment also alleged two prior offenses for enhancement purposes. The jury found Roy guilty as charged in the indictment.
At the guilt/innocence phase of the trial, a Dallas County deputy sheriff identified Roy by comparing a set of fingerprints taken on the trial date with those contained in a penitentiary packet. Defense counsel objected to the penitentiary packet because the judgment and sentence for the 1987 Dallas County conviction contained in the packet lacked certification by the Dallas County District Clerk. The trial court admitted the penitentiary packet.
At the punishment phase, the trial court admitted penitentiary packets for Roy's 1978 Dallas County conviction for delivery of a controlled substance and his 1984 Dallas County conviction for burglary of a building. Defense counsel again objected on the ground of lack of certification of the judgments. The trial court admitted the penitentiary packets. The packet for the 1984 Dallas County burglary conviction contained a Henderson County judgment for a 1985 burglary of a habitation conviction. The 1978 Dallas County and the 1985 Henderson County judgments contained the proper certification. The 1984 Dallas County conviction lacked proper certification.
The State charged Roy with felony escape under section 38.07 of the Texas Penal Code, which provides in pertinent part:
(a) A person commits an offense if he escapes from custody when he is:
(1) under arrest for, charged with, or convicted of an offense; or
(2) in custody pursuant to a lawful order of a court.
....
(c) An offense under this section is a felony of the third degree if the actor:
(1) is under arrest for, charged with, or convicted of a felony; or
(2) is confined in a penal institution.
TEX.PENAL CODE ANN. § 38.07 (Vernon 1979). Texas law defines penal institution as "a place designated by law for confinement of persons arrested for, charged with, or convicted of an offense." TEX.PENAL CODE ANN. § 1.07(a)(26) (Vernon 1974). At the time of Roy's escape, the legislature generally vested the Texas Department of Corrections with the statutory authority to designate penal institutions. TEX.REV.CIV.STAT.ANN. art. 6166g (Vernon 1970), repealed by Act of May 26, 1989, 71st Leg., ch. 212, § 3.03. Although article 6166g generally provided for the Texas Department of Corrections' exclusive management and control of the prison system, it specifically subjected that management and control to limitations in the area of pre-parolee transferees, like Roy, pursuant to former article 6166x-4 (now TEX.GOV'T CODE ANN. §§ 498.001-.005 (Vernon 1988)). Article 6166x-4 related to the "pre-parole transfer of prisoners to community residential facilities and to certain powers and duties of the Texas Department of Corrections ... and the Board of Pardons and Paroles and its officers...." Pre-Parole Transfer of Prisoners Act, 68th Leg., R.S., ch. 548, § 1, 1983 Tex.Gen.Laws 3190 (emphasis added). Article 6166x-4 provides in pertinent part:
Section 1. In this article:
....
(2) Community residential facility means a halfway house certified by and under contract with the Board of Pardons and Paroles ... or another facility or residence approved by the Texas Department of Corrections and the Board of Pardons and Paroles.
....
(5) Eligible prisoner means a prisoner or inmate in the actual physical custody of the Texas Department of Corrections for whom a presumptive parole date has been established by the Board of Pardons and Paroles....
....
....
(b) At the time of the transfer of the prisoner, the [Texas Department of Corrections] shall designate a community residential facility approved by the [Board of Pardons and Paroles] as the prisoner's assigned unit of confinement. A prisoner transferred pursuant to the terms of this article is deemed to be in continuing actual physical custody of the [Texas Department of Corrections]....
....
....
(b) On transfer, the prisoner is subject to supervision by the [Board of Pardons and Paroles] and shall obey the orders of the [Board of Pardons and Paroles] and the [Texas Department of Corrections].
....
TEX.REV.CIV.STAT.ANN. art. 6166x-4 (Vernon 1983), repealed by Act of May 26, 1989, 71st Leg., ch. 212 § 3.03 (emphasis added). Article 6166x-4 clearly indicates that when a prisoner transfers to the pre-parole program that both the Board of Pardons and Paroles and the Texas Department of Corrections must act jointly. The community residential facility to which the prisoner transfers becomes his unit of assignment. Although the Texas Department of Corrections chooses the facility to which the prisoner will transfer, that facility must be one approved by the Board of Pardons and Paroles. Therefore, as to a pre-parolee, the Texas Department of Corrections no longer enjoys the exclusive power to designate an approved penal institution. Rather, it must rely on the Board of Pardons and Paroles for that designation. A community residential facility must be either a halfway house certified by and under contract with the Board of Pardons and Paroles or the law requires another facility or residence approved by the Texas Department of Corrections and the Board of Pardons and Paroles. With these statutes and definitions in mind, we turn to a discussion of the merits of Roy's argument.
In his eighth point of error, Roy contends that the visiting judge who presided over his trial, a former judge of the 18th District Court, lacked the authority to do so. He argues that the presiding judge only received assignment to the 194th District Court of Dallas County during the period of time this trial took place. Since this case occurred in the 195th District Court, Roy argues the judge lacked jurisdiction to hear the case. Akin v. Tipps, 668 S.W.2d 432, 434 (Tex.App.--Dallas 1984, no writ).
Roy misplaces his reliance on Akin. In Akin, a former judge received assignment to the 193rd District Court solely for the purpose of concluding matters in a prior related action. Therefore he lacked the authority to hear any other matters, whether initially assigned to the 193rd or transferred there. Id. In the present case, the presiding judge received an assignment to act in the same capacity as the duly elected district judge.
Roy failed to object to the appointed judge's authority to hear this case during trial. Roy waived any error by his failure to make a timely objection to the authority of a judge from another district court to preside over his case. Bonilla v. State 740 S.W.2d 583, 588 (Tex.App.--Houston [1st Dist.] 1987, pet. ref'd). Article V, section 11 of the Texas Constitution provides in pertinent part that:
District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law.
TEX.CONST. art. V, § 11. Further, section 74.059(a) of the Texas Government Code provides that "[a] judge assigned under the provisions of this chapter has all the powers of the judge of the court to which he is assigned." TEX.GOV'T CODE ANN. § 74.059(a) (Vernon 1988). Whether the judge received assignment by administrative order to the 194th District Court or the 195th District Court remains unimportant since he may sit in either court. See Peach v. State, 498 S.W.2d 192, 195 (Tex.Crim.App.1973), rev'd on other grounds, Jackson v. State, 548 S.W.2d 685, 690 n. 1 (Tex.Crim.App.1977). Neither the docket sheet nor the minutes need state a reason for the exchange of benches by district judges. No formal order need be...
To continue reading
Request your trial
-
Cantu v. State
...to challenge one venireperson and not the other. See United States v. Alston, 895 F.2d 1362 (11th Cir.1990); Roy v. State, 813 S.W.2d 532 (Tex.App.--Dallas 1991, pet. ref'd). Thus, when the State has offered more than one plausible reason for striking a venireperson, it is proper to review ......
-
Young v. State
...necessary. A juror's physical problem is a racially neutral reason for exercising a peremptory strike. See Roy v. State, 813 S.W.2d 532, 538 (Tex.App.--Dallas 1991, pet. ref'd). The record reflects a difference in the responses by jurors Jennings and Penn when the court questioned them View......
-
European Crossroads' Shopping Center, Ltd. v. Criswell
...not require a formal order. The minutes of the court do not need to show the reason for the exchange. See Roy v. State, 813 S.W.2d 532, 537 (Tex.App.--Dallas 1991, pet. ref'd); Lowery, 518 S.W.2d at 901; Baldwin v. Leonard, 110 S.W.2d 1160, 1161 (Tex.Civ.App.--Eastland 1937, writ dism'd). A......
-
Vargas v. State, No. 08-03-00021-CR (TX 12/16/2004)
...1993)(failing to complete juror information card is a race-neutral justification for striking juror); Roy v. State, 813 S.W.2d 532, 538 (Tex.App.-Dallas 1991, pet. ref'd)(failing to complete juror information card is a race-neutral justification for striking juror); Hastings v. State, 755 S......
-
Jury Selection and Voir Dire
...the same degree. Such qualitative distinctions may cause a challenging party to challenge one venireman and not the other. Roy v. State, 813 S.W.2d 532 (Tex.App. — Dallas 199 1, pet. ref’d ). For example, in Spears v. State, 902 S.W.2d 512 (Tex.App. Houston [1st Dist.] 1994), the state pere......
-
Jury Selection and Voir Dire
...the same degree. Such qualitative distinctions may cause a challenging party to challenge one venireman and not the other. Roy v. State, 813 S.W.2d 532 (Tex.App. — Dallas 199 1, pet. ref’d ). For example, in Spears v. State, 902 S.W.2d 512 (Tex.App. Houston [1st Dist.] 1994), the state pere......
-
Jury Selection and Voir Dire
...the same degree. Such qualitative distinctions may cause a challenging party to challenge one venireman and not the other. Roy v. State, 813 S.W.2d 532 (Tex.App. — Dallas 199 1, pet. ref’d ). For example, in Spears v. State, 902 S.W.2d 512 (Tex.App. Houston [1st JURY SELECTION AND VOIR DIRE......
-
Jury Selection and Voir Dire
...the same degree. Such qualitative distinctions may cause a challenging party to challenge one venireman and not the other. Roy v. State, 813 S.W.2d 532 (Tex.App. — Dallas 199 1, pet. ref’d). For example, in Spears v. State, 902 S.W.2d 512 (Tex.App. Houston [1st Dist.] 1994), the state perem......