Robert Botello v. State ( 2006 )

                             NUMBER 13-05-00332-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

ROBERT BOTELLO,                                                                         Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 105th District Court of Nueces County, Texas.

                       MEMORANDUM OPINION

               Before Justices Hinojosa, Rodriguez, and Garza

                         Memorandum Opinion by Justice Hinojosa

In May 2001, appellant, Robert Botello, pleaded guilty to the offense of possession of cocaine in the 105th District Court of Nueces County, Texas.  The court found him guilty and assessed his punishment at five years= imprisonment and a $1,000 fine.  However, the prison sentence was suspended, and appellant was placed on community supervision for a term of five years.  The State subsequently filed a motion to revoke appellant=s community supervision.  After he pleaded Atrue@ to the State=s allegations, the court found that appellant had violated several conditions of his community supervision and sentenced him to three years= imprisonment.  In a single issue, appellant complains that a visiting judge did not have the authority to revoke his community supervision.  We affirm.

It is undisputed that the 105th District Court of Nueces County, Texas, had proper jurisdiction over appellant=s community supervision.  During all but one of appellant=s appearances before the court, the presiding judge of the 105th District Court, the Honorable J. Manuel Banales, presided.  However, at the hearing on the motion to revoke, the Honorable Robert C. Pate, Former District Judge, sitting by assignment, presided over the 105th District Court.  The order of revocation, however, was signed by Judge Banales.

It is well-established that a judge sitting by administrative assignment under the provisions of chapter 74 of the Texas Government Code Ahas all the powers of the judge of the court to which he is assigned.@  Tex. Gov=t Code Ann. ' 74.059(a) (Vernon 1998); Alexander v. State, 903 S.W.2d 881, 883 (Tex. App.BFort Worth 1995, no pet.) (citing Herrod v. State, 650 S.W.2d 814, 817 (Tex. Crim. App.1983) (opin. on reh=g); Alfaro v. State, 638 S.W.2d 891, 895 (Tex. Crim. App.1982); Pendleton v. State, 434 S.W.2d 694, 696‑97 (Tex. Crim. App.1968); see Tex. Const. art. V, sec. 11 (ADistrict Judges may exchange districts, or hold courts for each other when they may deem it expedient@)).

Appellant first argues that section 10 of article 42.12 of the Texas Code of Criminal Procedure limits the authority to revoke community supervision to the same judge who tried a defendant.  We disagree.

Section 10 does not provide, as appellant argues, that only the judge who tried a person may revoke the person=s community supervision.  Section 10 provides that Aonly the court in which the defendant was tried may grant community supervision, impose conditions, revoke the community supervision, or discharge the defendant . . . .@  Tex. Code Crim. Proc. Ann. art. 42.12, ' 10(a) (Vernon Supp. 2005) (emphasis added); compare id. (AIn a felony case, only the judge who originally sentenced the defendant may suspend execution thereof and place the defendant under community supervision pursuant to Section 6 of this article.@).  We will not superimpose additional restrictions on the statute.

Appellant next asserts it did not become apparent, until the time of perfecting his appeal, that a visiting judge was presiding.  Thus, he argues, he has not waived his right to object.

However, appellant presents no authority showing the right of a criminal defendant to object to an assigned judge.  On the contrary, the Texas Court of Criminal Appeals has held that section 74.053 of the Texas Government Code, which allows parties to civil cases to object to an assigned judge, does not apply to criminal cases.  See Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 586-87 (Tex. Crim. App. 1993); see also Tex. Gov=t Code Ann. '74.053(b), (d) (Vernon 1998).

We overrule appellant=s sole issue.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 20th day of July, 2006.