Opinion
No. 01-99-00468-CR
Opinion issued February 22, 2001
On Appeal from the County Court No. 1, Galveston County, Texas, Trial Court Cause No. 180,685
OPINION
In this pro se appeal we are asked whether (1) the trial judge took the constitutionally required oaths, (2) appellant received adequate notice, (3) the secretary of state duly authenticated the applicable statute, and (4) the evidence is legally sufficient. The trial court found appellant Danny Royce Murphy guilty of resisting arrest, search, or transportation. See Tex. Penal Code Ann. § 38.03 (Vernon 1994). The trial court assessed punishment at 30 days in jail and a $1,000 fine. We affirm.
In point of error one, appellant contends the trial judge's actions are void because the visiting trial judge, the Honorable Ronald L. Wilson, allegedly did not take the constitutional oaths required of an appointed officer before beginning his assignment. See Tex. Const. art. XVI, § 1(c) (oath of office), (d) (anti-bribery oath). We acknowledge that a judge's disqualification arising from a constitutional or statutory provision affects jurisdiction and renders the proceeding a nullity. See Davis v. State, 956 S.W.2d 555, 558 (Tex.Crim.App. 1997). The El Paso Court of Appeals has held that the constitution requires a visiting judge to take the required oaths for each assignment. Prieto Bail Bonds v. State, 994 S.W.2d 316, 318-21 (Tex.App.-El Paso 1999, pet. filed). Although appellant did not raise this issue in the trial court, a challenge to a trial judge's legal qualifications may be raised for the first time on appeal. Wilson v. State, 977 S.W.2d 379, 380 n. 3 (Tex.Crim.App. 1998). But see Tex.R.App.P. 33.1(a) (general rule that error must be preserved in trial court).
It is a fact question whether the trial judge took the oaths, and, as such, not a matter that this Court can determine. Cf. Tex. Gov't Code Ann. § 22.220(c) (Vernon 1988) (court of appeals may ascertain facts when necessary to determine its jurisdiction). To consider appellant's point of error on the merits, we would have to remand this issue to the trial court for an evidentiary hearing and appropriate findings of fact. We do not take this step, however, because appellant has brought nothing more than a mere allegation that the trial judge did not take the required oaths. We decline to let appellant conduct a fishing expedition in the hope that he might uncover some facts favorable to him. Instead, we hold that appellant must make a prima facie showing that the trial judge did not take the required oaths before we will consider the issue on the merits.
Such a prima facie case could easily be made by filing, with the appellate clerk, an affidavit from the secretary of state that recites that the required anti-bribery oath is not on file. See Tex. Const. art. XVI, § 1(f); 1 Tex. Admin. Code §§ 73.43-.44 (West 2000). The fact that the anti-bribery oath has not been filed with the secretary of state, however, is not conclusive proof that the trial judge did not take that oath or the oath of office, a matter that would have to be determined by a factfinder.
We overrule point of error one.
In point of error two, appellant claims he was denied due process because he was not provided with notice of the nature and cause of the charges against him. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The information, however, alleges appellant "did then and there unlawfully and intentionally prevent and obstruct a peace officer, to-wit: TROOPER PAUL ADKINS, whom [appellant] knew to be a peace officer, from effecting an arrest, search, and transportation of said [appellant], by using force against said peace officer, FIGHTING WITH TROOPER ADKINS." This language tracks the statutory language for the offense of resisting arrest, search, or transportation. See Tex. Penal Code Ann. § 38.03 (Vernon 1994). Subject to rare exceptions, a charging instrument that tracks the language of the statute will satisfy constitutional and statutory notice requirements, and the State is not required to allege facts that are merely evidentiary in nature. State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App. 1998). Accordingly, we hold that appellant's due process claim is meritless.
We overrule point of error two.
In point of error three, appellant argues that the applicable Penal Code provision (section 38.03) has not been authenticated by the secretary of state, as required by Texas Constitution article III, section 43(a) ("The Legislature shall provide for revising, digesting and publishing the laws, civil and criminal. . . .") and article IV, section 21 ("He [the secretary of state] shall authenticate the publication of the laws. . . ."). The legislature enacted section 38.03 in 1973 and amended it in 1991 and 1993. Act of May 24, 1973, 63d Leg., R.S., ch. 399, sec. 1, § 38.03, 1973 Tex. Gen. Laws 883, 950, amended by Act of May 19, 1991, 72d Leg., R.S., ch. 277, 1991 Tex. Gen. Laws 1185, amended by Act of May 29, 1993, 73d Leg., R.S., ch. 900, sec. 1.01, § 38.03, 1993 Tex. Gen. Laws 3586, 3666. Each of these three sets of session laws contains the secretary of state's required certification. 1973 Tex. Gen. Laws II; 1991 Tex. Gen. Laws II; 1993 Tex. Gen. Laws II. There is no requirement that individual codes, like the Penal Code, be authenticated by the secretary of state. Accordingly, we hold that appellant's lack-of-authentication claim is meritless.
Other than the publication of the session laws, Texas does not publish an official set of its laws similar to the United States Code. For this reason, the secretary of state no longer certifies the contents of the unofficial annotated statutes and codes published by the West Group, commonly known as the "Black Statutes" due to their black binding. See generally Texas v. West Publ'g Co., 882 F.2d 171 (5th Cir. 1989).
We overrule point of error three.
In point of error four, appellant contends the evidence is legally insufficient to support his conviction. The critical inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. This inquiry does not require this Court to ask whether we believe that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony fairly, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App. 1997); Howley v. State, 943 S.W.2d 152, 155 (Tex.App.-Houston [1st Dist.] 1997, no pet.).
Two peace officers testified that appellant struggled with them when they attempted to arrest him. This testimony alone is legally sufficient evidence on which to base appellant's conviction. See Luxton v. State, 941 S.W.2d 339, 340-41 (Tex.App.-Fort Worth 1997, no pet.).
We overrule point of error four.
We affirm the trial court's judgment.