Sparkman v. State

• Decision Date: 20 July 1999
• Docket Number: No. 06-98-00030-CR,06-98-00030-CR
• Citation: 997 S.W.2d 660
• Parties: (Tex.App.-Texarkana 1999) GUY E. SPARKMAN, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 660

997 S.W.2d 660 (Tex.App.-Texarkana 1999)

GUY E. SPARKMAN, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-98-00030-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted May 12, 1999

Decided May 13, 1999

Rehearing Overruled July 20, 1999.

On Appeal from the County Court at law Smith County, Texas, Trial Court No. 1-84863-96 [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

Opinion by Chief Justice Cornelius

Guy E. Sparkman appeals his conviction for operating a motor vehicle with a suspended license. For the reasons stated below, we affirm the judgment of the trial court.

On April 12, 1982, Sparkman was convicted for failure to maintain financial responsibility. Again on January 12, 1995, Sparkman was convicted for a like offense. On October 19, 1995, the Texas Department of Public Safety suspended Sparkman's driver's license and registration. Sparkman requested a hearing on the suspension, but the Department told Sparkman that the suspension was automatic without a hearing. Sparkman then sent a notice of appeal of the suspension to the Department of Public Safety, pursuant to the former statute, TEX. REV. CIV. STAT. ANN. art. 6701h, 2(b), codified effective September 1, 1995, as TEX. TRANSP. CODE ANN. 601.401 (Vernon 1999). Sparkman did not pursue his appeal for the suspension of his license.

On December 20, 1996, Sparkman was charged by information with operating a motor vehicle while his license was suspended. After a jury trial in the Smith County Court at Law, he was found guilty and sentenced to ninety days in jail and fined $250.00. This appeal arises from the misdemeanor conviction for driving with a suspended license.

Sparkman first contends that the visiting judge who presided over the trial was not authorized to act, and thus the judgment is void. The Honorable John Bradshaw was assigned to the case after the Honorable Tom Dunn recused himself. Sparkman contends that the record does not contain the assignment order and, as a result, Judge Bradshaw was not authorized to hear the case.

We disagree for two reasons. The order assigning Judge Bradshaw to the case is contained in the supplemental record. The order is signed by the presiding judge of the First Judicial Region and appears valid in all respects. Also, Sparkman failed to object before trial to the assignment of Judge Bradshaw. Because he did not object before trial to the assignment, he may not object later or for the first time on appeal. Wilson v. State, 977 S.W.2d 379, 380 (Tex. Crim. App. 1998).

Next, Sparkman contends that a valid judgment does not exist in the court below. He argues that the judgment is not signed by the trial judge as required by Article 42.01 of the Texas Code of Criminal Procedure. Judge Bradshaw presided over the three-day trial and orally pronounced judgment on October 9, 1997, in open court. Approximately one month later, Judge Dunn, the regularly elected judge of the court below, signed the written judgment. Sparkman contends that, because his judgment is not signed by the judge who presided over the trial, it is void.

A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. TEX. CODE CRIM. PROC. ANN. art. 42.01, 1 (Vernon Supp. 1999). Although Article 42.01 states that the trial judge must sign the judgment, it is not always necessary for the judge who presides over the trial to actually sign the judgment. Section 74.121 of the Texas Government Code provides:

The judges of constitutional county courts, statutory county courts, justice courts, and small claims courts in a county may transfer cases to and from the dockets of their respective courts, except that a case may not be transferred from one court to another without the consent of the judge of the court to which it is transferred and may not be transferred unless it is within the jurisdiction of the court to which it is transferred. The judges of those courts within a county may exchange benches and courtrooms with each other so that if one is absent, disabled, or disqualified, the other may hold court for him without the necessity of transferring the case. Either judge may hear all or any part of a case pending in court and may rule and enter orders on and continue, determine, or render judgment on all or any part of the case without the necessity of transferring it to his own docket. A judge may not sit or act in a case unless it is within the jurisdiction of his court. Each judgment and order shall be entered in the minutes of the court in which the case is pending.

TEX. GOV'T CODE ANN. 74.121(a) (Vernon 1998) (emphasis added). This case was not transferred pursuant to Section 74.121. Judge Bradshaw, a retired judge, was assigned pursuant to TEX. GOV'T CODE ANN. 74.056 (Vernon 1998). However, we find Section 74.121 useful in our determination of whether the duly elected judge of the court may sign the judgment in a trial over which a visiting judge presided.

The purpose of Section 74.056 is to establish a system by which qualified judges may be assigned to hold court when necessary to dispose of accumulated business in the region. TEX. GOV'T CODE ANN. 74.056. Judges are assigned to serve in cases in which the regularly elected judges are not available to sit or when they need assistance. Likewise, the purpose of Section 74.121 is to allow County Court at Law judges to transfer cases between themselves when a judge is absent, disabled, or disqualified. TEX. GOV'T CODE ANN. 74.121. Because Section 74.056 and Section 74.121 are similar and have the same purpose, we find that a visiting judge assigned under Section 74.056 has the same authority as when a case is transferred under Section 74.121. The major distinction between the two statutes is that Section 74.121 allows a transfer of cases without an assignment order between judges in a county, and Section 74.056 allows for an assignment of a visiting judge to hear a case.

We conclude that the elected judge of the trial court in this case could sign the written judgment, pursuant to Article 42.01 of the Code of Criminal Procedure, even where the visiting judge, properly assigned to the case, presided over the trial and orally pronounced judgment in open court.

There is an additional problem with the judgment in this case, however. Judge Dunn, who signed the judgment, had recused himself. Once a judge recuses himself, he may not take any other action in the case. TEX. R. CIV. P. 18a(c); Mixon v. Moye, 860 S.W.2d 209 (Tex. App.Texarkana 1993, orig. proceeding). Thus, in this case, Judge Dunn should not have signed the judgment. We will therefore remand this case to the trial court for reformation of the judgment by Judge Bradshaw, who presided over the trial, signing it.

Sparkman also contends that the complaint and information were vague and did not specify what subsection of Chapter 601 of the Texas Transportation Code he was charged with violating. Sparkman filed a motion to quash the complaint and information, asserting that he was not adequately informed of the charges against him. The trial court, after a hearing, overruled the motion to quash.

An accused in a criminal case is guaranteed the right to know the nature of the charge against him. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988); Smith v. State, 895 S.W.2d 449, 453 (Tex. App.Dallas 1995, pet. ref'd) The charging instrument itself must convey adequate notice from which the accused may prepare his defense. State v. Carter, 810 S.W.2d 197, 199 (Tex. Crim. App. 1991).

Subject to rare exceptions, an information that tracks the language of the statute is legally sufficient, and the State need not allege facts that are merely evidentiary in nature. Smith v. State, 895 S.W.2d at 453 (citing DeVaughn v. State, 749 S.W.2d at 67). A motion to quash should be granted only where the language regarding the accused's conduct is so vague or indefinite that it fails to give the accused adequate notice of the acts he allegedly committed. DeVaughn v. State, 749 S.W.2d at 67. In the face of a timely motion to quash, the information must allege on its face facts sufficient to show the offense was committed, and to bar a subsequent prosecution for the same offense, and to give the accused notice of the precise offense with which he is charged. Id.; Walker v. State, 828 S.W.2d 485, 489-90 (Tex. App.Dallas 1992, pet. ref'd). If a statute identifies more than one method by which it can be violated, the trial court should grant a timely motion to quash and require the State to specify the method or methods by which it intends to prove that the accused violated the statute. See Drumm v. State, 560 S.W.2d 944, 946-47 (Tex. Crim. App. 1977). This Court reviews the trial court's denial of a motion to quash under an abuse of discretion standard. See Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. [Panel Op.] 1981); Karnes v. State, 873 S.W.2d 92, 100 (Tex. App.Dallas 1994, no pet.).

The criminal information in Sparkman's case alleged that:

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS

I, H. W. MCGOWEN Assistant Criminal District Attorney of Smith County, State of Texas here in the County Court at Law of said County present that heretofore, to-wit, on or about the 27th day of October A. D. 1996 and anterior to the filing of this information, in the County of Smith and the State of Texas, one GUY E. SPARKMAN, did, then and there operate a motor vehicle upon a public highway, there situate, when the Texas Operator's License or privilege to drive of the said GUY E. SPARKMAN was suspended in accordance with Texas Transportation Code Section 601;

against the peace and dignity of the State.

Sparkman's motion to quash specifically addressed the information's failure to cite the exact provision of the Transportation Code t...