Brian Todd Dekle v. State

• Court: Court of Appeals of Texas
• Decided: January 29, 2020
• Docket: 10-19-00088-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00088-CR

BRIAN TODD DEKLE, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2016-324-C1

MEMORANDUM OPINION

The jury convicted Brian Dekle in Count Nos. 1, 3, 4, and 5 of the indictment for

the offense of aggravated sexual assault of a child and assessed punishment at 74 years

confinement for each count. The jury convicted Dekle in Counts 6 and 8 for the offense

of sexual assault of a child and assessed punishment at 20 years confinement for each

count. The jury convicted Dekle in Count 9 for the offense of indecency with a child by

contact and assessed punishment at 20 years confinement. We affirm. In the first issue, Dekle complains that the trial court was “without power” to hear

his case. Dekle was tried to a jury on February 19, 2019 through February 21, 2019. Judge

Strother, the elected judge of the 19th District Court of McLennan County, began the trial

and presided over the trial until the conclusion of the evidence. Judge Hodges presided

over the conclusion of the trial, including closing arguments, reading the charge, and

receiving the verdict. Judge Hodges was appointed by the McLennan County

Commissioners Court to act as an associate judge for all courts of McLennan County.

Judge Hodges was assigned as a visiting judge for all courts of McLennan County by

Presiding Judge Billy Ray Stubblefield for a period beginning October 16, 2018 through

September 30, 2019.

Dekle argues that Judge Hodges was not qualified to preside over the trial. Dekle

contends that Hodges was hired as an associate judge for McLennan County and that his

employment prevents him from serving as a visiting judge. Jurisdiction is something

possessed by courts, not by judges. Davis v. State, 956 S.W.2d 555, 557 (Tex. Crim. App.

1997). Dekle does not argue that the trial court did not have jurisdiction to hear his case.

The qualification of the trial judge could have been raised at trial. See Ex parte

Richardson, 201 S.W.3d 712, 714 (Tex. Crim. App. 2006). Dekle did not object to Judge

Hodges presiding over a portion of the trial. Dekle was aware that Judge Hodges would

preside over the closing arguments and jury deliberations, but he did not raise any

objection to Judge Hodges. Trial counsel for Dekle in fact stated, “…we don’t have any

Dekle v. State Page 2 problem with Judge Hodges coming in tomorrow.” Because Dekle did not object to the

qualifications of Judge Hodges at trial, we find that he has not preserved his complaint

for review. See Ex parte Richardson, 201 S.W.3d at 714.

Dekle raised a second issue in his initial brief. However, on November, 5, 2019,

his counsel filed an abandonment of that issue. Therefore, we will not address that issue.

We affirm the trial court’s judgment.

JOHN E. NEILL Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill (Chief Justice Gray concurring)* Affirmed Opinion delivered and filed January 29, 2020 Do not publish [CRPM]

*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.)

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