Davila v. State

OPINION

ONION, Presiding Judge.

Appeal is taken from an order revoking probation. On December 7,1979, the appellant entered a plea of guilty before the court to the indictment charging aggravated assault. The court assessed punishment at seven (7) years’ imprisonment, but suspended the imposition of the sentence and placed the appellant on probation subject to certain conditions, including:

“(a) Commit no offense against the laws of this or any other State or the United States.”

These proceedings were in the 72nd District Court of Lubbock County with Judge Thomas L. Clinton of the 99th District Court of Lubbock County as “Judge Presiding.”

The State filed a motion to revoke probation in the 72nd District Court dated August 29,1980, but file marked September 8, 1980, alleging that appellant had committed the offense of burglary of a habitation on August 25, 1980, in violation of his probationary conditions. On September 3, 1980, the court ordered a capias to issue for appellant’s arrest. The order signed by Judge Denzel Bevers of the 72nd District Court was not file marked until September 8, 1980.

On October 31,1980, the motion to revoke was heard by Judge John R. McFall of the 237th District Court of Lubbock. The statement of facts, approved without objection, reflects the proceedings were in the 72nd District Court with Judge McFall presiding under an exchange of benches. At the conclusion of the hearing, appellant’s probation was revoked. Sentence was imposed and notice of appeal was given.

On appeal the sole contention is that the 237th District Court did not have jurisdiction to revoke appellant’s probation. Attention is called to an instrument simply designated “Motion” filed in the 72nd District Court on October 31,1980, stating that appellant had been placed on probation by the 72nd District Court and that “this court” does not have jurisdiction since “no motion under 42.12 of the Code of Criminal Procedure has been filed” and the consent of the 72nd District Court had not been secured. No reference is made therein to the 237th District Court or to Judge McFall.

Prior to the revocation hearing, the record reflects:

“MR. WISCHKAEMPER (Appellant’s Counsel): One other motion there I might call the Court’s attention to, a motion as to the jurisdiction of the Court to hear this cause. We might get a ruling on that before we start.
“THE COURT: Well, let’s see. This is originally indicted in the 72nd, I believe. Am I right on that?
“MR. WISCHKAEMPER: Yes.
“THE COURT: It was heard by Judge Clinton on exchange of bench. And then Judge Bevers issued the warrant. And now, here I am.
“So I guess we have just about all had a shot.
“All right. I will overrule your motion. I will hear this under exchange of bench from Judge Bevers, and he has informed that he will sign an order if we need one. So I am hearing it on exchange with him.
“MR. WISCHKAEMPER: Note our exception.
*799“THE COURT: I will have a written one. We usually have one already in here, but I haven’t got one for him. So I will get it so that we will have a written exchange.
“Okay. Now, so I will overrule your Motion to Quash, I guess, is that what it is?”

There is in the appellate record an order transferring the case from the 72nd District Court to the 237th District Court signed by Judge Bevers and an acceptance of the transfer signed by Judge McFall. The instrument is dated October 31, 1980, by both judges, although it did not receive a file mark by the district clerk until November 10, 1980.

Appellant relies upon Article 42.12, § 5, V.A.C.C.P., which reads:

“Only the court in which the defendant was tried may grant probation, fix or alter conditions, revoke the probation, or discharge the defendant, unless the court has transferred jurisdiction of the case to another court with the latter’s consent. After a defendant has been placed on probation, jurisdiction of the case may be transferred to a court of the same rank in this State having geographical jurisdiction where the defendant is residing or where a violation of the conditions of probation occurs. Upon transfer, the clerk of the court of original jurisdiction shall forward a transcript of such portions of the record as the transferring judge shall direct to the court accepting jurisdiction, which latter court shall thereafter proceed as if the trial and conviction had occurred in that court. Any court having geographical jurisdiction where the defendant is residing or where a violation of the conditions of probation occurs may issue a warrant for his arrest, but the determination of action is to be taken after arrest shall be only by the court having jurisdiction of the case at the time the action is taken.”

Appellant acknowledges the transfer order but asserts in his brief that it was not timely filed prior to the revocation order. Assertions in an appellate brief unsupported by evidence cannot be accepted as fact. Appellant’s contention is without merit.

Further, if the validity of the transfer order could be questioned in any way, Judge McFall of the 237th District Court had the right to sit in the 72nd District Court on an exchange of benches or to hold court for Judge Bevers of the 72nd District Court.

Article V, § 11 of the Texas Constitution, states in part:

“And the district judges may exchange districts, or hold courts for each other when they deem it expedient, and shall do so when required by law.”

See also Article 1916, V.A.C.S., which states the same rule. Pendleton v. State, 434 S.W.2d 694, 696, 697 (Tex.Cr.App.1968); Floyd v. State, 488 S.W.2d 830 (Tex.Cr.App.1972); Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972).

It is not necessary that a formal order be entered for the judge of one district court to preside over a case in place of a duly elected judge, nor is it necessary for the docket sheet or minutes to show the reason for the exchange of benches by district judges. Pendleton v. State, 434 S.W.2d 694 (Tex.Cr.App.1968).

Further, Article 199a, § 2.002(a), V.A. C.S., provides:

“Sec. 2.002(a). In any county in which there are two or more district courts, the judges of such courts may, in their discretion, either in termtime or in vacation, on motion of any party or on agreement of the parties, or on their own motion, transfer any case or proceeding, civil or criminal, on their dockets to the docket of one of the other said district courts; and the judges of the courts may, in their discretion, exchange benches or districts from time to time.”

See also § 3.062 of Article 199a, supra. See and cf. Article 199-137, V.A.C.S.

There is no merit to appellant’s contention.

The judgment is affirmed.