Smith v. State

Decision Date17 November 2020
Docket NumberNO. 01-19-00442-CR,01-19-00442-CR
PartiesKEITH SMITH, Appellant v. THE STATE OF TEXAS, Appellee
CourtCourt of Appeals of Texas

On Appeal from the 339th District Court Harris County, Texas

Trial Court Case No. 1529312

MEMORANDUM OPINION

A jury found Keith Smith guilty of the offense of sexual assault of a child. See TEX. PENAL CODE § 22.011(a)(2). The jury then assessed Smith's punishment, enhanced by two prior felony convictions, at thirty years in prison. In four issues on appeal, (1) Smith raises an "as applied" challenge to the constitutionality of Government Code section 74.056(a), the statute by which the judge who presided over his trial was appointed to sit by assignment; (2) he complains that the judge was not authorized to preside over his case because the order of assignment assigned the judge to the 263rd District Court, not to the 339th District Court, the court in which his case was prosecuted; (3) Smith asserts that, because the State had abandoned the second enhancement paragraph, the trial court erred by directing the jury to find both enhancement allegations in the indictment "true"; and (4) he claims that he is not required to pay the $754 in court costs ordered by the trial court because the trial court did not consider his ability to pay the costs as statutorily required.

We affirm.

Background

The indictment in this case was filed in the 339th District Court of Harris County. The indictment alleged that on July 7, 2014, Smith committed the offense of aggravated assault by placing his sexual organ in the sexual organ of the complainant, a person younger than 17 years of age. See id. The indictment also contained two enhancement paragraphs, which alleged that Smith had been convicted of the felony offense of possession of a controlled substance in 1999 and had been convicted of the felony offense of assault of a family member in 2006.

The case was tried to a jury from June 3 to June 5, 2019. The elected judge of the 339th District Court of Harris County, the Honorable Maria Jackson, did not trythe case, instead the Honorable Denise Bradley, a retired Harris County District Court judge, presided over the trial. Before voir dire began, Judge Bradley told the jury panel as follows:

My name is Denise Bradley. I am a senior retired judge. . . . I have retired and they've asked me to come back to try cases because as you can imagine, since the hurricane things were very slow down here. We've got a backlog. So, of course, I'm thrilled to be able to come back into this building and to have the opportunity to preside over criminal cases here in Harris County.

The jury later found Smith guilty of the offense of sexual assault of a child. At the beginning of the punishment phase, Smith pleaded true to both felony enhancements in the indictment. As instructed in the charge, the jury found the enhancement allegations in the indictment to be true. The jury assessed Smith's punishment at thirty years in prison.

Assigned Judge's Authority to Preside over Smith's Case

In his second issue,1 Smith contends that Judge Bradley was not authorized to preside over the trial in his case. To support his contention, Smith has attached to his brief an order signed by the Presiding Judge of the Eleventh Administrative Judicial Region, dated May 8, 2019, assigning Judge Bradley to the 263rd District Court of Harris County. The order provides, in relevant part, as follows:

Pursuant to Section 74.056, Texas Government Code, I hereby assign the Honorable Denise Bradley, Senior District Judge, 262nd JudicialDistrict Court, to the 263rd Judicial District Court of Harris County, Texas.
This assignment begins the 9th day of May, 2019 and is for the primary purpose of hearing cases and disposing of any accumulated business requested by the court.
This assignment shall continue as may be necessary for the assigned Judge to dispose of any accumulated business and to complete trial of any case or cases begun during this assignment, and to pass on motions for new trial and all other matters growing out of accumulated business or cases heard before the Judge herein assigned, or until terminated by the Presiding Judge.

The order is not contained in the record, but Smith requests that we take judicial notice of the order. An appellate court may, within its discretion, take judicial notice of adjudicative and legislative facts on appeal. Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App. 1994); see TEX. R. EVID. 201(c)(2) (providing that court must take judicial notice "if requested by a party and supplied with the necessary information"). Generally, "appellate courts take judicial notice of facts outside the record only to determine jurisdiction over an appeal or to resolve matters ancillary to decisions that are mandated by law." Gaston v. State, 63 S.W.3d 893, 900 (Tex. App.—Dallas 2001, no pet.); see Estrada v. State, 313 S.W.3d 274, 287 (Tex. Crim. App. 2010) (taking judicial notice of Texas Department of Criminal Justice regulation).

Even if we take judicial notice of the presiding judge's May 8 order of assignment, we cannot sustain Smith's claim that Judge Bradley was not authorizedto preside over his trial. The order of assignment reflects that the presiding judge assigned Judge Bradley to the 263rd District Court pursuant to Government Code section 74.056. Section 74.056(a) provides that the presiding judge of an administrative judicial region may assign judges in the region to "try cases and dispose of accumulated business." TEX. GOV'T CODE § 74.056(a). Consistent with that provision, the presiding judge's order states that Judge Bradley's assignment was "for the primary purpose of hearing cases and disposing of any accumulated business requested by the court." See id.

Government Code section 74.054 provides that active, retired, or senior judges may sit by assignment. See id. § 74.054. Smith does not dispute that as a retired district court judge who has taken senior status, Judge Bradley is qualified to sit by assignment and does not otherwise dispute her qualifications. Instead, Smith argues that Judge Bradley was not authorized to preside over the proceedings in his case because the presiding judge's order assigned Judge Bradley to the 263rd District Court, not to the 339th District Court in which his case was tried. However, Smith did not object in the trial court to Judge Bradley's presiding over the proceedings. Without an objection and concomitant discussion in the record about Judge Bradley's assignment, we do not know whether the May 8 order of assignment provided by Smith with his brief was the only order of assignment under which Judge Bradley was sitting when she presided over the proceedings in Smith's case.

This Court has recognized that "it has long been a 'cardinal rule' of appellate procedure in Texas that we 'must indulge every presumption in favor of the regularity of the proceedings and documents' in the trial court." Murphy v. State, 95 S.W.3d 317, 320 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (emphasis in original) (quoting McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975)). "The presumption of regularity is a judicial construct that requires [an appellate] court, 'absent evidence of impropriety,' to indulge every presumption in favor of the regularity of the trial court's judgment." Id. (emphasis in original) (quoting Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000)). "We have consistently upheld the 'presumption of regularity of the judgment and the proceedings absent a showing to the contrary.'" Id. (quoting Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd)). The burden is on the appellant to overcome the presumption of regularity. Id.

Here, Smith asserts that Judge Bradley did not have authority to preside over his case because there was no order assigning her to the 339th District Court. As evidence of this, he attaches the May 8 order of assignment assigning Judge Bradley to the 263rd District Court. However, proof that Judge Bradley was assigned to the 263rd District Court is not evidence that there was no order assigning her to the 339th District Court. See id. Because he has not proffered affirmative support from the record demonstrating that no order assigned her to the 339th District Court, wehold that Smith has failed to overcome the presumption of regularity. Id. (holding that mere absence of proof in record that visiting judge took oath of office does not overcome presumption of regularity)

Moreover, assuming the May 8 order is the only order of assignment, Judge Bradley was nonetheless authorized to preside over the trial in Smith's case. Government Code section 74.059(a) provides that a judge sitting by order of assignment has "all the powers of the judge of the court to which he is assigned." TEX. GOV'T CODE § 74.059(a); see also TEX. GOV'T CODE 24.003(b)(3) (providing that "a district judge in the county may . . . sit for another district court in the county and hear and determine any case or proceeding pending in that court"). Courts have held that a retired district court judge assigned to sit in one district court has the authority to preside in another district court. See Mendoza v. Fleming, 41 S.W.3d 781, 785 (Tex. App.—Corpus Christi 2001, no pet.) ("Courts have interpreted these provisions as allowing a judge properly assigned to one district court to preside in other district courts of the same county."); Ex parte Dharmagunaratne, 950 S.W.2d 140, 142 (Tex. App.—Fort Worth 1997, pet. ref'd) ("Under well-settled case authority, the proper assignment of Judge Walker to the 371st District Court authorized him to sit in the other district courts of Tarrant County, including the 297th District Court. Judges sitting by assignment may be properly authorized to preside over more than one court in a county."); Tyrone v. State, 854 S.W.2d 153,156 (Tex. App.—Fort Worth 1993, pet. ref'd) (holding that retired...

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