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presuming that former judge was properly assigned when appellant did not object and only basis for appellant's assertion that judge was not statutorily qualified to sit was absence of formal order of appointment in record
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No. 05-10-01190-CR No. 05-10-01191-CR No. 05-10-01192-CR No. 05-10-01193-CR
03-22-2012
RAUL DAVID JACKSON, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed March 22, 2012
On Appeal from Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause Nos. F06-00445-K, F06-00448-K, F06-00450-K, and F06-00453-K
OPINION
Before Justices O'Neill, Richter, and Francis
Opinion By Justice Richter
A grand jury charged appellant, Raul David Jackson, by indictment with (1) possession, with intent to deliver, 400 grams or more of cocaine, (2) delivery of 1 gram or more but less than 4 grams of cocaine, (3) delivery of 4 grams or more but less than 200 grams of cocaine, and (4) delivery of 4 grams or more but less than 200 grams of cocaine. Appellant pled guilty, judicially confessed, and stipulated to the State's evidence of the offenses. At the hearing on appellant's guilty pleas , the State sought, and the trial court granted, a deadly weapon finding in cause number F06-00445-K. The trial court found appellant guilty and sentenced him to forty-five years, twenty-five years, thirty years, and thirty-five years in prison, respectively. In two issues, appellant asserts the trial court's judgments should be vacated because the record does not show that the trial judge had the constitutional or statutory qualifications to preside, and the evidence was legally insufficient to support the trial court's deadly weapon finding. For the reasons set forth below, we affirm the judgments of the trial court. BACKGROUND
Vertis McKinney, a Dallas police officer, testified that during the spring and summer of 2005, he investigated appellant's apartment in response to a complaint that drugs were being sold at the apartment. Over a three month period, Officer McKinney bought crack cocaine at appellant's apartment on three different occasions. Officer McKinney testified that appellant was in charge of the operation. On July 8, 2005, Officer McKinney and a team of officers executed a warrant at the apartment. Officer McKinney testified that it took several minutes to get inside the apartment because appellant was holding the door closed. The officers were finally able to enter the apartment after application of a stun device and a battering ram. Once inside the apartment, applicant continued to fight with the officers while a woman named Jackie Trevino attempted to dispose of crack cocaine by throwing it into the garbage disposal. A search of appellant's apartment revealed approximately $9,000 in cash, 1.36 kilograms of crack cocaine in the kitchen, drug paraphernalia, and three loaded handguns. Two handguns were in the kitchen and one handgun was in the bedroom.
Although the Honorable Ron Chapman presided at the hearing on appellant's guilty pleas and his sentencing, he was not the presiding judge of Criminal District Court No. 4. Appellant filed out-of-time appeals that were dismissed for lack of jurisdiction. The Court of Criminal Appeals granted appellant's applications for habeas corpus and ordered that he be allowed to file these out-of-time appeals.
According to the record, the Honorable Ron Chapman was sitting for the Honorable John Creuzot, Presiding Judge of the Criminal District Court No. 4 of Dallas County, Texas.
DISCUSSION
In his first issue, appellant argues the trial court's judgments should be vacated because it cannot be ascertained from the record that the Honorable Ron Chapman had the constitutional or statutory qualifications to preside over appellant's guilty pleas and his sentencing. In his second issue, appellant contends the evidence was legally insufficient to support the trial court's deadly weapon finding in cause number F-06-00445-K.
Judicial Qualification
Appellant argues that because there is nothing in the record to indicate that the Honorable Ron Chapman was constitutionally or statutorily qualified to sit for the Honorable John Creuzot, the trial court's judgments should be vacated. The Texas Constitution provides that "District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law." Tex. Const. art. V, §11. The Texas Government Code provides that retired and former judges may be assigned to hold court when necessary to dispose of accumulated business in the region, provided they meet the requirements of chapter 74. Tex. Gov't Code Ann. §§ 74.052, 74.055, 74.0551 (West 2005). A retired judge, sitting by assignment, has all the powers of the judge of the court to which he is assigned. Tex. Gov't Code Ann. § 74.059 (West 2005); see also Fichtner v. State, No. 05-99-01053-CR, 2001 WL 328178, at *4 (Tex. App.-Dallas April 5, 2001, pet. refused). A retired judge who has properly filed an election to continue serving as a judicial officer is a district judge in this sense, and no formal order of appointment is necessary for the retired judge to preside over a case in place of a duly elected judge. See Fichtner, 2001 WL 328178, at *4; see also Buckley v. State, No. 05-99-00286-CR, 2000 WL 1093226, at *2 (Tex. App.-Dallas August 7, 2000, pet. refused). Justice Ron Chapman retired from the Texas State Court of Appeals, Fifth District, in 1999 .
The record reflects that at the hearing on his guilty pleas, appellant did not object to Judge Chapman presiding over his cases and did not object to the lack of a written assignment order appointing Judge Chapman to Dallas County Criminal District Court No. 4. An appellant may not object, for the first time on appeal, to a procedural irregularity in the assignment of a former judge who is otherwise qualified. Wilson v. State, 977 S.W.2d 379, 380 (Tex. Crim. App. 1998); see also Buchanan v. State, 471 S.W.2d 401, 403-04 (Tex. Crim. App. 1971). However, a challenge to the trial judge's legal qualifications may be made for the first time on appeal. Wilson, 977 S.W.2d at 380, n.3. Appellant attempts to distinguish this appeal from the Wilson and Buchanan cases in which the defects were procedural irregularities in the orders of assignment. Instead, appellant argues that the facts in this case are similar to the facts in Herrod v. State, 650 S.W.2d 814, 817-18 (Tex. Crim. App. 1983). In Herrod, the Texas Court of Criminal Appeals reversed a conviction because the record did not reflect compliance with the statutory requirement that the presiding judge of a county criminal court be absent, disabled, or disqualified at the time of the trial so as to authorize a retired judge to sit. Id. The Herrod court observed that even if the visiting judge was duly assigned and even if the regular judge was absent, disabled, or disqualified, there was no showing in the record that the sitting judge, a retired district judge, had executed the bond or taken the required oath of office. Id. at 818. Interpreting since-repealed statutes, the court dealt specifically with the issue of whether a retired district judge had the authority to act in a county criminal court in the absence of a statutorily required order establishing that the regular judge was absent, disabled, or disqualified. Id. at 817. The court expressly distinguished the facts in Herrod from cases involving an exchange of benches between district judges, or the assignment of an eligible, retired district judge, who elects to continue in his judicial capacity, to preside over a trial in a district court. Id. We agree with the State that the Herrod case is distinguishable from the facts in this case. In the case before us, an eligible, retired justice presided over the hearing on appellant's guilty pleas in a district court.
In Fichtner, appellant complained that the record failed to reflect any order appointing the visiting judge to the district court. See Fichtner, 2001 WL 328178, at *5. We noted that appellant had failed to show that the visiting judge was not generally assigned to another district court in Dallas County. Id. We concluded that absent any evidence to the contrary, we presume the visiting judge was properly assigned to a district court in Dallas County. Id. We further concluded that because appellant failed to object to the visiting judge's authority at trial, he could not assert the objection for the first time on appeal. Id., citing Wilson, 977 S.W.2d at 380-81.
In Buckley, the Honorable Ron Chapman informed the jury that he had retired after twenty years of judicial service in Dallas County and now that he was retired, he was open for assignment. See Buckley, 2000 WL 1093226, at *2. Noting that appellant did not contest the fact that Judge Chapman was properly assigned under Texas Government Code section 74.056, we stated "we will presume that Judge Chapman was duly appointed and in regular discharge of his duties under section 74.056." Id.
In this case, the only basis for appellant's assertion that Judge Chapman was not constitutionally or statutorily qualified to sit for Judge Creuzot is the fact that the record does not contain a formal order of appointment. Absent any evidence to the contrary, we presume Judge Chapman was properly assigned to another district court in Dallas County. See Fichtner,2001 WL 328178, at *4. Since Judge Chapman, as a retired justice sitting by assignment, is a district judge in this sense, no formal order need have been entered at the time of trial for him to preside over appellant's case. See Buchanan, 471 S.W.2d at 404; Fichtner, 2001 WL 328178, at *4; Buckley, 2000 WL 1093226, at *2 . Even so, appellant's failure to object at the time of trial waives any complaint he now has on appeal. Wilson, 977 S.W.2d at 380-81; Crawford v. State, 509 S.W.2d 582, 585-86 (Tex. Crim. App. 1974). We resolve appellant's first issue against him.
Sufficiency Of The Evidence
In his second issue, appellant argues the evidence is insufficient to support the deadly weapon finding in cause number F06-00445-K. Appellant contends there was no evidence that: (1) the guns were used or exhibited, (2) the guns were functional, (3) the guns furthered the offenses charged, and (4) that other people were put in actual danger. The State asserts they only had to present evidence showing the proximity of the weapons to the drugs.
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
Article 42.12, section 3g(a)(2) of the Texas Code of Criminal Procedure permits the entry of a deadly weapon finding when it is shown that a defendant used or exhibited a deadly weapon during the commission of a felony offense or was a party to the offense and knew that a deadly weapon would be used or exhibited. Tex. Code Crim. Proc. Ann. art. 42.12, §3g(a)(2) (West Supp. 2011). In the context of a deadly weapon finding, the term "use" means any employment of a deadly weapon, even simple possession, if that possession facilitates the associated felony. Davis v. State, 323 S.W.3d 190, 197 (Tex. App.-Dallas 2008, pet. refused); Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004); Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). However, the term "exhibit" requires a weapon to be consciously shown, displayed, or presented to be viewed. Coleman, 145 S.W.3d at 652; Patterson, 769 S.W.2d at 941.
When reviewing the sufficiency of the evidence to support a deadly weapon finding, the real question for review is whether the weapons were found to have facilitated the appellant's possession and intended distribution of the drugs. See Davis,323 S.W.3d at 197; Coleman, 145 S.W.3d at 655. The defendant's proximity to the gun at the time of the search is not dispositive. See Coleman,145 S.W.3d at 654. The focus is on the proximity of the guns to the drugs, not the proximity of the guns to the defendant. See id. at 654-55 (discussing Gale v. State, 998 S.W.2d 221, 226 (Tex. Crim. App. 1999)). A reviewing court must determine whether the cumulative effect of the factors could have allowed the fact finder to determine that the appellant used the weapons to protect the drugs and the proceeds therefrom. Coleman, 145 S.W.3d at 655.
Three loaded handguns were found in the apartment. Two of the handguns were in the kitchen, in close proximity to the 1.36 kilograms of crack cocaine found in appellant's apartment. A rational trier of fact could have found that appellant "used" the weapons to facilitate his possession and distribution of the narcotics. See Coleman, 145 S.W.3d at 655; Patterson, 769 S.W.2d at 942. We conclude the evidence is sufficient to support the trial court's deadly weapon finding. Appellant's second issue is overruled.
CONCLUSION
Having overruled all of appellant's issues, we affirm the trial court's judgments.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101190F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RAUL DAVID JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01190-CR
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F06- 00445-K).
Opinion delivered by Justice Richter, Justices O'Neill and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 22, 2012.
MARTIN RICHTER
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RAUL DAVID JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01191-CR
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F06- 00448-K).
Opinion delivered by Justice Richter, Justices O'Neill and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 22, 2012.
MARTIN RICHTER
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RAUL DAVID JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01192-CR
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F06- 00450-K).
Opinion delivered by Justice Richter, Justices O'Neill and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 22, 2012.
MARTIN RICHTER
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RAUL DAVID JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01193-CR
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F06- 00453-K).
Opinion delivered by Justice Richter, Justices O'Neill and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 22, 2012.
MARTIN RICHTER
JUSTICE