AFFIRM; and Opinion Filed April 29, 2014. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 13
- 00292
- CR PERRY SMART , Appellant V. THE STATE OF TEXAS , Appellee On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F
- 12
- 56097
- P 

### MEMORANDUM OPINION Before Justices Moseley, O’Neill, and FitzGerald Opinion by Justice O’Neill A jury convicted appellant Perry Smart of assault family violen ce. After finding two enhancement paragraphs true, the trial court assessed punishment at twenty

- five years’ confinement. Appellant argues he is entitled to a new trial b ecause the presiding judge who sentenced him should have been disqualified for repre senting him in a previous criminal matter. He also contends the record is insufficient to support the trial court’s order to pay $244 in court costs. We affirm the trial court’s judgment. Background Appellant and complainant dated for approximately five years. In the early morning hours of April 28, 2012, appellant went to complainant’s apartment to pick up some of his clothes. When complainant told appellant she no longer wanted to see him , appella nt became
angry. He hit complainant in the face and the chest. He repeatedly pinched her face. Appellant– 2

– also threatened her with a baseball bat and later used it to destroy her television sets. He threw her cell phone in the toilet so she could not ca ll for help. Complainant testified the argument began around 5:00 a.m. and continued until appellant left around 8:00 a.m. She later went to the hospital where she was diagnosed with a “slight concussion.” Appellant was arrested and charged with assault family violence. Despite appellant’s attempt to attack complainant’s credibility during trial , the jury found him guilty. Punishm ent was before the trial court. T he Honor able Theresa Hawthorne presided

. During punishment, the State introduced two prior judgments to support the enhancement paragraphs of the indictment. The first enhancement paragraph stated the following: And it is further presented to said Court that prior to the commission of the offense or offenses set out above, the defendant was fi nally convicted of the felony offense of POSSESSION OF A CONTROLLED SUBSTANCE, in the CRIMINAL DISTRICT COURT NO. 2 of DALLAS county, Texas, in Cause Number F

9239659 , on the 2ND day of April, 1992[.] The judgment in the 1992 conviction reflects that defen se counsel for appellant was “Teresa Hawthrone” and “Teres Hawthorne.” A ppellant pleaded true to the enhancement paragraphs

. T he court sentenced him to twenty

- five years’ imprisonment. This appeal followed. Judicial Disqualification In his first issue, appellant argues the tria l judge was disqualified under a rticle 5, section 11 of the Texas Constitution and article 30.01 of the Texas Code of Criminal Procedure because she previously represented him in a criminal case used to enhance punishment. The St ate responds the record does not establish that Judge “Teresa Hawthorne” is the same “Teresa Hawthrone” or “Teres Hawthorne” who represented appellant in 1992, and even if she is the same person, a judge is not disqualified because she defended the accused in the past. First, we agree with the State there is no evidence in the record establishing that the sentencing judge was in fact the same attorney who represented appellant in 1992. Other than– 3

– the argument in appellant’s brief, there is no conclusive evidence in the record to support his claim.
E ven assuming Judge Hawthorne represented appellant in 1992, she was not disqualified to preside over the instant case. The Texas Constitution and the Texas Code of Criminal Procedure prohibit a judge from si tting in any case in which the judge has been counsel. See Tex. Const . art. 5, § 11 (“No judge shall sit in any case wherein the jud ge may be interested, . . . ,

or when the judge shall have been counsel in the case.”); T EX
. C ODE C RIM
. P ROC
. A NN . art. 30.01 (West 2006 ) (“No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, . . . .” ). It has been held that to come within the meaning of “counsel in a case,” it must appear that the judge acted as counsel in the very case before her. Hathorne , 459 S.W.2d at 829. The record is clear Judge Hawthorne was not counsel in the case before her. Moreover , a judge is not disqualified simply because she defended the a ccused in a past case. See Hathorne v. State , 459 S.W.2d 826, 830 (Tex. Crim. App. 1970); Kuykendall v. State , 335 S.W.3d 429, 432 (Tex. App.

— Beaumont 2011, pet. ref’d); Nevarez v. State , 832 S.W.2d 82, 88 (Tex. App.

— Waco 1992, pet. ref’d). Appellant ac knowledges the case law against his position; however, he argues the Hathorne court did not specifically consider the issue of whether a defense attorney , later sitting in judgment of a former client when prior convictions could be used for enhancement , mu st be disqualified

. Rather, appellant argues the only issue decided by Hathorne was whether disqualification is required when the trial judge was counsel for the State in prior convictions used for enhancement

. Similar to our sister courts of appeal in B eaumont and Texarkana, we reject appellant’s limited interpretation of Hathorne

. See Morsman v. State , No. 06

- 12

- 00199

- CR, 2013 WL 2247322, at *2 (Tex. App.

— Texarkana May 20, 2013, no pet.) (mem. op., not designated for publication) (rejecting argument th at language referring to defense counsel in– 4

– Hathorne was dicta); Kuykenda ll , 335 S.W.3d at 433 (“An intermediate court is not free to disregard the holding of a higher court, and we decline to characterize as obiter dictum what the high court has described as its holding.”). Therefore, a ssuming Judge Hawthorne was appellant’ s defense counsel in 1992 , her service as counsel in a conviction used for enhancement purposes did not come within the meaning of “counsel in the ca se” as used in the Texas Constitution, article 30.01 of the Texas Code of Criminal Procedure, or as interpreted by Texas court s . Accordingly, she was not statutorily or constitutionally disqualified. We overrule appellant’s first issue. Court Costs In hi s second issue, appellant argues the evidence is insufficient to support the trial court’s order requiring him to pay $244 in court costs. A supplemental clerk’s record in support of the costs is now on file with this court. Thus, the issue is moot. See Johnson v. State , No. PD

0193

- 13, 2014 WL 714736, at *4 (Tex. Crim. App. Feb. 26, 2014); Coronel v. State , 416 S.W.3d 550, 555 (Tex. App.

— Dallas 2013, pet. ref’d). Appellant’s second issue is overruled. Conclusion Having overruled both of appellant’s is sues, we affirm the trial court’s judgment.

Do Not Publish T EX
. R. A PP
. P . 47 130292F.U05 /Michael J. O'Neill/ MICHAEL J. O’NEILL JUSTICE– 5

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# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
PERRY SMART, Appellant
No. 05

- 13

- 00292

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 203rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F

- 12

- 56097

- P. Opinion delivered by Justice O’Neill. Justices Moseley and FitzGerald participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 29th day of April, 2014.

/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE