### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00331- CR

Jam es Coy, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 427 TH JUDICI AL DISTRICT NO. D-1 -DC- 06- 3022 26, H ONO RAB LE JIM CO RONADO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant J ames Coy pleade d g uilty to assault with family violence and was place d on defe rre d adjudication community supervision. See Tex. Pena l Code Ann. § 22.01 (West Supp. 2009). The State subsequently moved to adjudicate , alleg ing that appellant violated the terms of his

s upervision by failing to pay his fine, fee s, and costs, and by committing another assault. After a hear ing be fore a mag istrate and ba sed on the mag istrate’s finding s and re commendations, the trial court adjudicate d appellant g uilty and sentenc ed him to ten y ear s in prison and a $473.82 fi n e. I n three points of err or, appellant co n t en ds that the ref err al of the adjudication motion to the mag istrate was unconstitutional and otherwise unlawful. We overr ule these contentions and aff irm the conviction. I n his first point of error , appellant contends that subchapte r Q of c hapter 54 of the g overnme nt code, g overning the use of criminal law mag istrates in Travis County , violates the TexasConstit ution beca use it permits a district court to deleg ate substantial judicial duties to a mag istrate without any meaning ful judicial o v ersight or revie w of the mag istrate’s actions. See Tex. Const. art. V, §§ 1, 7, 8 (providing for a nd defining jurisdiction of district c ourts); Tex. Gov’ t Code Ann. §§ 54.970-.984 (West 2005) (cr iminal law mag istrates in Travis County ). Although he purports to challeng e the constitutionalit y of th e entire subchapte r, appellant’ s arg ument is direc ted ag ainst

s ec t i o n 54.982(b), which provides that “[i] f t he [ ref err ing district] court does not modify , corr ect, reje ct, reve rse, or rec ommit an action of the mag istrate, the action become s the decr ee of the court.” T ex . C o de C rim. Proc. Ann. art. § 54.982(b). Appellant arg ues t hat by allowing the action o f t h e mag istrate to become the decr ee of the court without any further action by the co u rt , s ec tion 54.982(b) pe rmits a district court to deleg ate to a sur rog ate the judicia l authority committed to the court by the constitution. Ap p el l ant lacks standing to make this arg ument beca use section 54.982(b) did not opera te in this case . Outside the First Amendment fre e speec h context, if there is no constitutional defe ct in the application of a statute to the litigant, he does not have standing to arg ue that the statute would be unconstit utional if applied to a thi rd party in a h y p o t h et ical si tuation. Santikos v. Stat e , 836 S.W .2d 631, 633 (Tex. Crim. App. 1992) (quoting Ulster County Court v. Allen , 442 U.S. 140, 154-55 (1979))

. Thus, it is g ener ally incumbent on a defe ndant challeng ing the constitutionalit y of

a statute to show that in its opera tion the statute is unconstitutional as to him in his situation. Raby

v. State , 970 S.W .2d 1, 7 (Tex. Crim. App. 1998); Santikos , 836 S.W

. 2 d at 633. I n this case , the mag istrate prepa

red written finding s and rec ommendations and forwa rded them to the district court, which in turn made a writ t en order expressly stating that it had revie wed and adopted the mag istrate’s actions. See Tex. Gov’t Code Ann. §§ 54.981(a) , .982(a)

. The court there afte r rende red 2and signe d a written judgme nt adjudicating appellant’ s g uilt and i m p o s ing sentenc e. Whether

section 54.982(b) violates the Tex as C onstitut ion by allowing a mag istrate’s a ction to become the court’s decr ee by defa

ult is an issue that appellant is in no position to raise beca use it was not applied to him. P oint of err or one is over ruled. Appellant makes a simil ar arg ument in his third point of err or. He contends that the issues raised and decisions made at an adjudication hear ing “g o to the very core of judicial powe r in a criminal case ,” and that to deleg ate these decisions to a judicial surrog ate over his objection denied him due proce ss and due course o f l aw . S ee U.S. Const. amends. V, XI V; Tex. Const. art. I , § 19. The State co n t ends that appellant failed to make an objection prese rving this contention for appea l. Appellant’s only objection to having t h e ad j u dication hear ing befor e the mag istrate was made afte r the State re sted at the hear ing. Be fore calling the only defe nse witness, who was appellant, counsel stated, “I would like to rene w my objection about Mr. Coy hasn’t waived his rig ht to have J udg e De nton hear this case .” The magistra te asked counsel, “What is the basis

1 of the objection? ” Counsel replied, “He was the sentenc ing judge on this particula r case . . . .” The

2 mag istrate persisted, “What is the leg al basis for that? ” Counsel r esponded, “Well, the sentenc ing judge is supposed to hear the—any revoc ations on his judgme nt.” The mag istrate asked, “So is that y our entire objection? ” Counsel re plied, “Ye s, Your Honor .”

I f there was a

n ear lier objec tion, appellant does not re fer us to it and we have not found it. 1 The ear lier proce eding s in this cause wer e befor e the Travis County Court at L aw Number 4. 2 See Tex. Gov’t Code Ann. § 25.2292(c) (West Supp. 2009). The ca u s e was transfe rre d to the district court afte r the county court at law defe rre d adjudication and place d appellant on community

supervision. 3We share the State’s doubts as to the adequa cy of this objection, but appellant’ s

contention is w ithout mer it in any event. The court of criminal appea ls ha s stated that “[n] o act of the mag istrate is leg ally binding unless and until the mag istrate’s actions are adopted by the ref err ing court.
. . . [ T ] h e m agi s t ra tes act only as the ag ents of the district court
. . . .” Kelley v. State , 676 S.W .2d 104, 107 (Tex. Crim. App. 1984) (holding that Dallas County mag istrate’s act did not violate V of Texas Consti t u t i o n ). I n the cause befor e us, the district court ref err ed the motion to adjudicate to the mag istrate, rec eived, considere d, and adopted the magi s t ra t e’s finding s and

rec ommendations, and rende red judgme nt adjudicating appellant g uilty and imposing sentenc e. At

ever y step of the proce eding , the mag istrate acte d under the superv i s i o n of the district court. We hold that the dis t ri ct co urt did not improperly deleg ate its judicial authority and there by deny appellant due proce ss or due c ourse of law. Point of err or three is overrule d. Finally , appellant contends tha t th e ma g is tr a

te w a s s ta tu torily prohibited from hear ing evidenc e and making a rec ommendation reg arding the punishment t o b e assessed following ad j u dication of g uilt. Appellant acknow ledg es that a district court is authorized to ref er to

a m agi s t rate proce eding s involving a motion to proce ed to adjudication. Tex. Code Cr i m . Pro c. An n . ar t
. § 54.976(a) (10). He arg ues, howeve r, that the punishment proce eding following adjudication constitutes a criminal trial on the merits over which a mag istrate may not preside. See id

. § 54.976(b). He arg

ues that sections 54.976(a) (10) and 54.976(b) must be rea d toge ther so as to permit the ref

err al of the decision to adjudicate , but not the subsequent punishment deter mination. This Court has t wice held that a hearing on a mot ion t o p roceed to adjudication is not a contested trial on the merits and may proper ly be ref err ed to a mag istrate. Smith v. State , 936 S.W .2d 434, 435-36 (Tex. App.—Austin 1996, no pet.); Gary v. State , 880 S.W .2d 485, 487 4(Tex. App.—Austin 19 9 4 , pet. ref ’d). Nothing said in Barfield v. State or Lopez v. State , more

rec ent opinions cited by appellant, is inconsistent with our holdings in Smith and Gary

. See Barfield

v. Sta te , 63 S.W .3d 446, 449-50 (Tex. Crim. App. 2001) (citing prior case law and restating that bifurca

ted tri al p ro ce d u re applies only to pleas of not g uilty befor e jury ); Lopez v. State , 96 S.W .3d 406, 412 (Tex. App.—Austin 2002, pet. re f’ d ) (s am e). We hold that the statutory authority to ref

er “pr o ce edings involving

. . . a motion

. . . to proce ed to an adjudication” encompa sses both the decision to adjudicate and the deter mination of the appropr iate punishment. Point of error two is ove rruled.

The judg ment of convic tion is affirmed.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: Aug ust 11, 2010 Do Not Publish

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