Opinion
No. 03-04-00292-CR
Filed: January 27, 2006. DO NOT PUBLISH.
Appeal from the District Court of Williamson County, 277th Judicial District, No. 01-325-K277, Honorable Ken Anderson, Judge Presiding. Affirmed.
Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
MEMORANDUM OPINION
Keith Duchon Garrett appeals his conviction for indecency with a child, urging in a single issue that, because the trial judge served as district attorney when Garrett was indicted, the judge was disqualified and the proceeding was void based on a lack of jurisdiction. We will affirm.
BACKGROUND
In October 2001, Garrett pleaded guilty to indecency with a child by exposure. See Tex. Pen. Code Ann. § 21.11 (West 2003). At that time, the Honorable Jon R. Carter presided over the 277th District Court. Pursuant to a plea agreement, Judge Carter deferred adjudication, placed appellant on community supervision for five years, and ordered Garrett to pay a $2,500 fine and to serve thirty days in jail. In December 2003, the State filed a motion to set aside Garrett's deferred adjudication. An initial hearing on this matter occurred in January 2004. By this time, the Honorable Ken Anderson presided over the 277th District Court. Judge Anderson began the hearing by calling the case and then saying:So, the first thing I need to take up with you and your attorney is you were actually prosecuted in 2001 when I was still District Attorney of Williamson County. I just checked the file, and it doesn't appear that I had anything to do with the actual prosecution of your case. It was handled by one of the Assistant D.A.s that worked for me. So I can hear your case. But if either you or [your attorney] would prefer I not hear your case I would be happy to get another judge, and that is entirely up to you. So, you will need to talk about it.The record reflects that Garrett then conferred with his counsel, and Judge Anderson asked the prosecutor to confirm from the file that he had not participated in Garrett's case as a district attorney. The prosecutor verified that Judge Anderson had no personal involvement in the case. Garrett's attorney responded that "Mr. Garrett has stated that he has no opposition, nor do I, to your continuing with the case." At a subsequent hearing in April 2004, Judge Anderson adjudged Garrett guilty and ordered his probation revoked. After Garrett's attorney stated that there was no legal reason to postpone sentencing, the court sentenced Garrett to ten years' imprisonment. Garrett contends in one issue that this adjudication of guilt and this sentence should be reversed as void because the court lacked jurisdiction based on Judge Anderson being disqualified.