NO. 07-03-0271-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D MAY 10, 2005

______________________________ STEVEN CHARLES POWELL, APPELLAN T

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 64TH DISTRICT COURT OF SWISHE R COUNTY; NO. A 280 5-9403; H ONORABLE ED SELF , JUDGE

_______________________________ Before QUINN and REAVIS and CAMPBELL , JJ.
OPINION Appellant

Steven Charles Powell brings this appeal c hallenging a judgment revoking his comm unity supervision and imposi ng his original sentence of ten years confinement a nd a $1,000 fine. We

will af firm the ju dgment.
In March 1994 appellant was charged by indi ctment with the felony offense of sexual assault. The indictment was returned by a grand jury convened by the 64 th Distri ct Court of Swisher County, the Honorable Jack Miller presiding. In July 1994 appellant pled guilty
as part of a plea agreement. Judge Miller imposed sentence in accordance wit h th e1 This judg ment does not appe ar in therecord be fore us. I ts terms ar e reflected in subsequent judgments. -2- agreementatten years confine ment and a $1,000 fine, pro bated for five yea rs conditioned on appel lant’s compliance with te rms set by the court

. In June 1998 the Statefiled a motion to revoke a lleging seven vi olations of the te rms and conditions of appellant’s probation. Appell ant pled true to six of the seven allegations at an Octobe r 1 998 hearing on the motion. The court continued appellant on probation, adding t hree year

s to the te rm. 1
The State filed a second motion to revoke in the 64 th DistrictCourt in January 2002. This motion alleged six violations of his probation conditions. In March 2002 appellant pled true to a part of th e State’s allegat ion he fa iled to r eport tohis prob ation off icer. The trial court found the State’s allegations true and a gai n continued appellant on probation, extending the community supervision two years, for a total of ten years from the origi nal sentence. The ju dgment waived appellant’s “community service hours in the amount of 285 hours” an d the cri me stoppe rs paymen t.
The State filed its third motion to revoke in March 2003 al leging appellant violated four of the conditions of his probation. The H onorable Robert Kinkaid had succeeded Judge Miller as judge of the 64th District Court. Because Judge Kinkaid had previously participated as a prosecutor in the case he w as di squalified and appellant filed a pro se request “to have Judge Kinkaid removed from my case,” on April 2 8, 2003. A few days later Judge Kinkaid signed a order appointing attorney Peter Clarke to represent appellant2 Atthe hearing Judge Self stated he did not fin d appellant committed one of the two acts formi ng the ba sis of the State’s first grou nd.

-3- in the revocation proceeding. Judge Kinkaid took no other action in the case until he appointed appellant’s appellate counsel after the judgment of revocation.
The revocation proceeding was first called for a hearin g befor e the Honorable Ed Self, judge of the 242n d Distric t Court of Swisher County, on May 12 , 2003. At thathearing appell ant requested his objection to Judge Kinkaid be referred to the regional a dministrative judge for assignment of another judge but did not question the jurisdiction of the court. The onlyobjection to Judge S elf’ s participation was: “I [defense counsel] am familiar with the agreementthe two courts [64th an d 242nd] have on that. . . . Mr. Powell is basica lly objecting to that.” The contents of any agreement between the judges of those co urts is notclear from the record. Counsel also sought a continuan ce because he did n ot become
aware of his appointment on the revocation proceeding until just before leaving his office
on vacation and the revocation hearing began shortly after his return. Judge Self overruled the request f

or assign ment of a judge by the regio nal admi nistra tive judge but granted a continua nce unti l May 28, 2003.
W hen the hearing reconvened May 28, 2003, appellan t pled true and fil ed a stipulation of

evidence in which he admitted to three of the allegations in the State’s motion. The caption on the stipulation recited it was filed i n the 242nd District Court. Judge Self found each of the allegations in the State’s p etition true 2 and se nten ced appellant to ten years confinement and a $1,000 fine. The judgment recites i t was issu ed in the 64th DistrictCourt, Judge Self presiding. The commitment recites it was based on a judgment3 We perceive this to r efer to criminal charges arising from the same facts on which the first ground in the State’s motion to revoke was based

. -4- of the 64th District Court. Acting pro se, appellant filed a notice of appeal. Judge Kinkaid appointed appellant’s current counsel to represent him on appeal June 3, 2003. On June 11, 2003, Judge Self signed a certifi cate of appellant’s right to appeal from the revocation only. Th is docume nt was ca ptioned in the 24 2nd Dist rict Cour t. Appellant’s appellate counsel filed a motion fo r new tria l in the 242nd Di strict Co urt alleging trial co unsel fa iled to p roperly p resent ap pellant’ s request to recuse“the 64th DistrictCourt judge and its consequent effect mandating that no exchange of bench could
occur to the Honorable Ed Self,” that the “underlying” charges 3 have been dismissed, trial counsel’s error harmed appellant, and the judgment was void. Judge S elf’s order overruling the motio n for new trial is also cap tioned a s occurri ng in the242nd D istrict C ourt. Appellant’s brief on appeal advances three points of error, (1) whether the trial court lacked jurisdiction, (2) whether it erred in denying appellant’s motion for new trial, and (3) whether a ppellan t was den ied reas onably e ffective a ssistanc e of coun sel. Appellant

first arg ues the tr ial cour t lacked jurisdiction over the proceeding because Judge Kinkaid was disquali fied and had no authority to transfer the case to the 242nd DistrictCourt, and that the case was transferred without a written order as required by local rule. It is und isputed Jud ge Kinkaid was di squalified t o hear the mot ion to revoke . Tex. Const. art. V, § 11; Tex. Code. Crim. Proc. An n. art. 30 .0 1 (Vernon Supp. 2004). Even assuming that Judge Kinkaid also would ha ve been disqualified from taking the action of4 Section 24.303 expres sly applies to the 242nd Dist rict Court , Tex. Govt. Code Ann.

§§ 24.301, 24.419, a nd the co ntext in dicates i t is also applica ble to th e 64th District Court.
-5- transferring the case , see Koll v. State , 157 S.W.2d 377, 379 ( Tex.Cr im.App. 1 941), but
see Tex. Govt. Code Ann. § 24.303(b) (Vernon 2004) (d irecting disqual ified jud ge of some district courts to transfer case to another district court in the same county), we do not a gree that Judge Kinkaid did so. Appellant’s position the case was transferre d to the 2 42nd Dis trict Cou rt appear s to be based on the fact Judge Self is the judg e o f that court. But, while the record is not entirelyconsistent, we conclude the case was tried by Judge Self in the 64th District Court under an exch ange of b enches. S ection 24.303(b) and (c) of the Government Code expresslyprovid e that in the event of the disqualification of a di strict judge, any other district judge of the count y may hol d court fo r him. Te x. Govt. C ode Ann. § 24.303( c) (Vernon 2 004). 4
Thatthe case was tried in the 64th Dis trict Cou rtis established by the judgment from which appell ant bri ngs this appeal, which re cites it was issu ed by the64th Dis trict Cou rt. The fact thatJudge S elf was t he Judgeof the 24 2nd Dist rict Cour t does no t controve rtthe recitation in the judgment. See Pendleton v. State , 434 S.W.2d 694, 696-97 (Tex.Crim.App. 1968); Te x. Govt. C ode Ann. § 24.303 (b) (Verno n 2004).
The clerk’s record contains some documents indicating the proceeding was heard in the 242nd District Court, but most of those were fil ed by app ellant. The caption on the-6-

reporter’s record recites the hearing was held in the 242nd District Court, but the clerk’s record ref

lects theproceedi ng occurr ed in the64th Dis trict Cou rt.
The record do es contai n three d ocuments signed b y Judge S elf in dicating the proceeding occurred in the 242nd District Court. They are thecertificate of appellant’s right to appeal, the orde r overrul ing appe llant’s motion fo r new tria l, and an order d irectin g paymentof

appellant’s trial counsel. Viewing the record as a whole leads to the concl usion these thre e documen ts simply were in error to th at exten t.
The absence of

a written order transferring the case provides additional support for the conclusion Judge Self heard the casein the 64th District Court under an exchange of benches rather than by transfer of the case to the 242nd District Court. As appellant notes, th e loc al administrative rules for the 64th and 242nd Di strict Courts contain the following provisions concerning transfers and exchange of bench es:
Rule 1.05. a ) An y case may be transferred from one court to the other by writte n order of the judge from whom the case is transferred, provided the judge to whom the case is being transferred consents. Such con sent shall be presumed upon the filing of a transfer order signed by the Ju dge of th e Court from which the case is being transferred. b) The Judges may exchange benchesby agree ment as ne eded to p romote judicial efficiency.
Under the local rule, no written order wa s require d for an e xchangeof bench es. See also Davila v. State , 651 S.W.2d 797, 799 (Tex.Crim.App. 1983) (citing Pendleton , 434 S.W.2d 694 (no written order required for an exchange of benches)); Tex. Const. Art. V, §11 ("the5 Appellant points to an order in a different cause number as evidence that the local procedure

is to use an order “to transfer from one court to the other, even on exchanges of benches .” The argu ment, and referenced order, fail to distinguish between transfers and exchang es of ben ches. An exchan ge of ben ches is n ot a type of transfe r. -7- DistrictJudges may exchange districts, or hold courts for each other when they may deem it exped ient."); T ex. Govt. Code § 2 4.303 (Ve rnon 200 4). 5 Appellant’s rel iance on the civi l cases of Johnson v. Pumjani , 56 S.W.3d 670 (Tex.App.–Houston [14th Dist.] 2001, no pet.), In re PG & E Reata Energy, L.P. , 4 S.W.3d 897 (Tex.App.–Corpus Christi 1999) (orig. proceeding); and In re Rio Grande Valley Gas Co. , 987 S.W.2 d 167 (Tex.App.–C orpus Ch risti 199 9) (orig. proceedi ng), is mi splaced

. Those cases involve motions to recuse under Ruleof Civil Procedure 18a. We agreewith appellant’s observation that Rule 18a can be appli ed in a crimin al proce eding, Arnold v. State , 853 S.W.2d 5 43, 544 (Tex.Crim.App. 1993), but we do not agree i t trumps the provisions of Government Code Section 24.303 that expressly address disqualified judges. Tex. Gov’t Code Ann. §§ 24.30 3(b), (c). Even Article 30.02 of the Code of Criminal Procedure, also expressly applicable to disq ualified judges, has not been treated as precluding an exchange of benches. See Special Commenta ry by Hon . John F. Onion, Jr ., following Art. 30.0 2 in Tex . Code Cr im. Proc. Ann. art. 30.02 (Vernon 1989). We overrule appella nt’s firs t point. Appellant’s second point of error asserts the trial court erred in denying his motion for new trial. That

motion was predicated on appellant’s chal lenge to Judge Self’s a uthority to hear the revocation proceeding and trial counsel ’s ineffectiveness in challenging Judge Self’s authority. Appellant also contends he was entitled to a hearing on the motio n to-8-

demonstra te his trial counsel’s ineffective representation at the May 12 hearing, at which he presented his objection to Judge Self’s authority to p reside over the proceeding, was notthe resul t of trial strategy. See Jack son v. Sta te , 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Appe llant’s third point of error argues his trial counsel was ineffective because, although “counsel raised the issue of the 242nd District Court’s i nability to sit on the case, he failed to demonst rate the point by reference

to contro lling l aw, or to the record that ther e was no order exchanging benches in the case.” By our disposition of his first point, we concluded appellant’s premise that the revocation proceeding was heard in the 2 42 nd DistrictCourt is incorrect. Too, becaus e no order is necessary for an exchange of benches, Pendleton , 434 S.W.2d at 697, the failure of counsel to point to the absence of
an order was not deficient performance. Having thus conclud ed the arguments appellant
no w conten ds trial counsel should have presented at the May 12 hearing are not meritorious, we cannot agree counsel’s performan ce was de ficient. Jackson , 877 S.W.2d at 771. Our disposition of appellant’sfirst point is dispositive also of appellant’s remaining arguments

under his second and third points. We overr ule them, and affirm the judgment of the tri al court.

James T. Campbell Justice
Do not publish.