Donald Franklin Connaly v. State

• Court: Court of Appeals of Texas
• Decided: June 11, 2009
• Docket: 02-08-00264-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-08-264-CR

DONALD FRANKLIN CONNALY APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

MEMORANDUM OPINION 1

A jury convicted Appellant Donald Franklin Connaly of aggravated sexual

assault of a child and assessed his punishment at ten years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice. In two

points, Appellant contends (1) that the judgment and verdict are void because

the senior district judge sitting by assignment allegedly had not been appointed

1 … See Tex. R. App. P. 47.4. to sit in the trial court and had not taken the required oath and (2) that the trial

court abused its discretion by admitting hearsay. Because the trial court did not

err, we affirm the trial court’s judgment.

In his first point, Appellant, relying on Lee v. State, 2 argues that, although

he did not object to the visiting senior judge’s presiding over his trial, the

judge’s actions are, nonetheless, of no effect and should be deemed void, not

just voidable, because there is nothing in the record to show that the judge was

appointed or that he took the requisite oath. The State, however, argues that

the judge’s actions are not void, but voidable. When an action by the trial court

is not void, but voidable, the complaint is preserved for appellate review only

if it is raised by objection or other complaint in the trial court. 3

Appellant cites no constitutional or statutory authority requiring a visiting

judge’s judicial oath or appointment confirmation to be included within the

record of each and every trial over which the judge presides. Nothing in the

record indicates that the visiting senior judge did not take the oath or that he

was not properly appointed. The record, therefore, does not support a

complaint that the trial judge did not take the oath and was not properly

2 … 555 S.W.2d 121, 124 (Tex. Crim. App. 1977). 3 … Miller v. State, 866 S.W.2d 243, 245–46 (Tex. Crim. App. 1993); Lopez v. State, 57 S.W.3d 625, 628 (Tex. App.—Corpus Christi 2001, pet. ref’d); see Wilson v. State, 977 S.W.2d 379, 379–80 (Tex. Crim. App. 1998).

2 appointed and could not, therefore, lawfully sit as the presiding judge over the

trial. Appellant could easily have sustained his burden by objecting to the trial

judge and making sufficient record at trial or by filing a motion for new trial and

making the necessary record at that time. But as the record stands, there is no

evidence that the trial judge did not take the necessary oaths and was not

properly assigned to try the case now before this court.

Additionally, “the presumption of regularity of trial court judgments and

proceedings applies to appellate challenges of visiting trial court judges for

alleged failures to take their constitutionally required oath.” 4 An appellant who

makes a challenge to the lawfulness of a visiting trial judge’s presiding over a

trial must make a prima facie showing that the trial judge did not take the

required oath before an appellate court will consider the issue on the merits. 5

The burden is on the moving party to overcome the presumption of regularity.6

Because Appellant did not sustain this burden, we overrule his first point.

In his second point, Appellant challenges the admission of various items

of evidence that he characterizes as hearsay. He complains of the stepmother’s

4 … Murphy v. State, 95 S.W.3d 317, 320 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (op. on reh'g). 5 … Id. 6 … Id.

3 friend’s written statement, the stepmother’s testimony regarding a statement

made to her by the complainant, the stepmother’s written statement, the

complainant’s taped interview with a social worker, and a protective order

issued from Hill County. But Appellant briefed only his complaint that additional

outcry statements were inadmissible because of noncompliance with article

38.072 of the code of criminal procedure, relying on Rodriguez v. State.7 That

is, he complains that the child’s stepmother’s statements should not have been

admitted because the stepmother’s friend, not the stepmother, was listed on

the State’s outcry notice, and only one outcry witness is permitted.

The stepmother’s testimony was not admitted as outcry evidence.

Rather, it was admitted as a prior consistent statement. Additionally, at trial,

Appellant objected to the child’s stepmother’s recitation of what the

complainant told her only as hearsay. He did not complain when it was

admitted that it was a second outcry, nor does he direct us to any place in the

record where he lodged an objection that the stepmother’s testimony

constituted a second outcry. We overrule Appellant’s complaint regarding the

testimony of the child’s stepmother.

7 … 819 S.W.2d 871, 872, 874 (Tex. Crim. App. 1991); see also Long v. State, 800 S.W.2d 545, 546 (Tex. Crim. App. 1990); Beckley v. State, 827 S.W.2d 74, 79 (Tex. App.—Fort Worth 1992, no pet.).

4 Appellant did not brief his other hearsay complaints. To the extent that

he raised them only to show the degree of harm from what he considered to be

the improper admission of a second outcry statement, we overrule them as

moot. To the extent that he raised them as independent complaints, we

overrule them as inadequately briefed.8 We overrule Appellant’s second point.

Having overruled both points, we affirm the trial court’s judgment.

LEE ANN DAUPHINOT JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: June 11, 2009

8 … See Tex. R. App. P. 38.1(i); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001); Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998).