Fain v. State

986 S.W.2d 666, 1998 WL 874928

• Court: Court of Appeals of Texas
• Decided: March 4, 1999
• Docket: 03-95-00427-CR
• Status: Published

Opinions

BEA ANN SMITH, Justice.

After granting the State’s motion for rehearing en banc, we withdraw the panel opinion and judgment issued March 12, 1998 and substitute this one in its place. This is an appeal from a conviction of murder. See Tex. Penal Code Ann. § 19.02(b)(1), (2) (West 1994).¹ After the jury returned a verdict of guilty, appellant Roger Eugene Fain pleaded true to the enhancement of punishment allegations as to prior convictions, and the trial judge assessed punishment at life imprisonment. On original submission, the panel voted to reverse appellant’s conviction on an unassigned point of error, holding that the district court had no authority to act and therefore lacked jurisdiction over the case. The panel found that there had been no change of venue and concluded that the Williamson County district court erred by conducting this trial in the county seat of Smith County without a change of venue. The panel held that this procedure violated article V, section 7 of the Texas Constitution, and declared the district court’s judgment void. We granted the State’s motion for rehearing en banc.

Today, the Court en banc holds that the trial court’s error was procedural, not jurisdictional, and that appellant waived any error relating to venue by failing to object at trial. We will therefore address the six points of assigned error that the panel did not reach. Appellant raises six points of error claiming that he was denied due process of law, that he did not receive effective assistance of counsel, and that the trial judge made erroneous evidentiary rulings. Because we find appellant’s assigned points of error to be without merit, we will affirm the judgment of conviction.

Unassigned Error

We will first address the unassigned point of error on which the panel voted to reverse. The indictment upon which this conviction was obtained charged Roger Eugene Fain with the murder of Sandra Dumont in Williamson County, and was returned to the 277th District Court of Williamson County. The case came before Judge John R. Carter of the 277th District Court. Fain’s counsel moved for a change of venue, arguing that inflammatory media publicity in Williamson County had created public hostility toward Fain and made the selection of an impartial jury in that county unlikely. Judge Carter announced in December 1994 that he intended to grant Fain’s motion.

However, in January 1995, Judge Carter approved an agreement signed by the prosecutor, defense counsel, and Fain consenting to try the case in Smith County without a formal change of venue. The agreement specified that the case would be tried before a jury selected from a Smith County jury panel, but that the case would remain on the docket in Williamson County and all matters apart from the actual jury trial would be conducted in Williamson County. Furthermore, the defense and the prosecution both agreed to waive “any and all rights to a formal transfer of venue to Smith County” and “any and all rights to complain of the failure of the Court to formally transfer venue to Smith County.” The case was tried by Judge Carter in Tyler, the county seat of Smith County. A Smith County jury convicted Fain of Dumont’s murder, and Judge Carter sentenced Fain to life imprisonment.²

Jurisdiction Versus Authority

In our prior opinion, this Court held that the act of trying Fain in Smith County while the case remained on the docket in Williamson County violated article V, section 7 of the Texas Constitution. Tex. Const, art. V, § 7.³ The panel construed this circumstance as a jurisdictional error, which is a type of fundamental error that can be raised on appeal even if no objection was made at trial. See Methodist Hosps. of Dallas v. Texas Workers’ Compensation Comm’n, 874 S.W.2d 144, 149 (Tex.App.—Austin 1994, no writ). However, in Davis v. State, 956 S.W.2d 555 (Tex.Crim.App.1997), the Court of Criminal Appeals carefully explained the difference between a court’s jurisdiction and its authority or power to act. In that case, Davis challenged the revocation of his probation for possession of a controlled substance by arguing that the magistrate’s order placing him on probation was void because the district judge’s order of referral was signed two days after Davis’s plea was taken. The court of appeals held that the late referral was untimely and ineffectual; therefore, jurisdiction was never conferred upon the magistrate, and the magistrate’s order imposing probation was void. See Davis v. State, 928 S.W.2d 289, 291 (Tex.App.—Fort Worth 1996), rev’d, 956 S.W.2d 555 (Tex.Crim.App.1997). Believing the error to be jurisdictional, the court of appeals held that it could be raised for the first time on appeal and reversed Davis’s conviction. See 928 S.W.2d at 291.

The Court of Criminal Appeals unanimously voted to reverse. In an opinion joined by seven members of the court,⁴ Presiding Judge McCormick stated: “Jurisdiction is generally understood to denote judicial power or authority. However, ... this term is often misapplied.” Davis, 956 S.W.2d at 557. The court explained that the Texas Constitution vests jurisdiction in the district courts, not in judges, for whom the constitution lists qualifications and provides certain circumstances in which judges may be disqualified from acting. See id.; see also Tex. Const. art. V, §§ 7, 11. Jurisdiction, the court noted, is something possessed by courts, not by judges: “It is a misnomer to speak of the jurisdiction of a judge outside the realm of the jurisdiction of the court in which he sits.” 956 S.W.2d at 558. “The judge is merely an officer of the court ... [h]e is not the court itself.” Id. at 557-58 (quoting Ex parte George, 913 S.W.2d 523, 526 (Tex.Crim.App.1995)).

The Davis court quoted at length from Judge Meyers’s concurring opinion in Stine v. State, 908 S.W.2d 429 (Tex.Crim.App.1995), which explained:

Although the word “jurisdiction” has a broad meaning in common parlance, and is often used as a synonym for “authority” even in legal writing, it is traditionally considered in the law to identify a much more specific kind of power. A court’s jurisdiction is comprised generally of its authority to render a particular kind of judgment (such as an order of commitment or a judgment for money damages) in some kinds of disputes (such as felony criminal prosecutions or personal injury lawsuits) between certain classes of persons (such as everyone present within the state or within a subdivision of the state). There are of course, many other nonjuris-dictional aspects of litigation in which the conduct of a court is controlled by law. Sometimes, when the court’s conduct violates one of these laws, especially a law which seems “mandatory” on its face, it is common to say that the court did not have authority to act as it did. But it is a mistake to say that the court was without jurisdiction in the matter.

Stine, 908 S.W.2d at 434 (Meyers, J., concurring) (citations omitted).

Davis then addressed the difference between a trial judge’s acts that are void and those that are merely voidable. The court observed that when a judge is disqualified under the constitution or by statute, she lacks authority over the proceedings and her actions are a nullity, ie., void. See Davis, 956 S.W.2d at 559. As examples, the court listed circumstances such as when a judge presides over the same case she originally prosecuted, or is related to one of the parties by affinity or consanguity. See id.; see also Tex. Const. art. V, § 11. Similarly, Davis noted that a temporarily appointed municipal judge’s actions have been held void because he had not taken the oath of office as required for elected judges and appointed officers by article XVI, section 1. See Davis, 956 S.W.2d at 559 (citing French v. State, 572 S.W.2d 934 (Tex.Crim.App.1978) (on second motion for reh’g)).

In contrast, the Davis court observed, “errors involving the violation of a statutory 'procedure have not been deemed to be void, but voidable.” See Davis, 956 S.W.2d at 559 (emphasis added). The court cited Miller v. State, 866 S.W.2d 243 (Tex.Crim.App.1993), a case in which the defendant argued that because the procedures for appointing a special judge⁵ were not followed, the special judge lacked jurisdiction to hear the case. While the docket sheet noted that the special judge had been appointed on motion of the court, Miller had not received the statutorily required notice and hearing on the issue, and he had not agreed to the appointment. See Miller, 866 S.W.2d at 246. The court observed that Miller’s attack was directed at the procedure by which the special judge was appointed, but did not challenge the court’s jurisdiction in the proceeding below. See id. at 246 n. 6. Nor did Miller claim that the special judge was disqualified as a matter of law. See id. Miller’s conviction was thus “voidable” but not “void.” See Davis, 956 S.W.2d at 559.

The Davis court noted that the type of procedural error involved in Miller requires an objection to preserve it for appellate review: “Therefore, if a judge is qualified and not constitutionally or statutorily disqualified, his actions are not void due to procedural irregularities in the manner in which the case came before that individual, although it may be error rendering the conviction voidable.” See Davis, 956 S.W.2d at 559 (citing Miller, 866 S.W.2d at 245-46) (emphasis added). Applying the law to the facts of the case before it, the court in Davis found that the jurisdiction of the trial court, the authority of its judge, and the magistrate’s authority to hold the position of magistrate were not in question. See id. at 560. Specifically, the court held that the trial court’s jurisdiction was not affected by the procedural error, and the order placing Davis on probation was not void. See id. The court acknowledged that an error had been made by the trial judge, making the error “voidable” but not ‘Void,” a distinction carved out earlier in the opinion. See id. at 559. Because the error was not jurisdictional and the conviction was not void, the court held that the court of appeals had erred in allowing Davis to raise the error for the first time on appeal. See Davis, 956 S.W.2d at 560.

The Purposes Behind the Change of Venue Provisions and the County Seat Requirement

Fain, his attorney, and the prosecutor in this case signed a written agreement allowing a change of venue to Smith County without the necessity of a formal transfer of venue, because all parties agreed that Fain’s notoriety in Williamson County as a murder suspect would prevent a fair trial there. On the basis of this agreement, Judge Carter attempted to move the venue of the proceedings to Smith County. In so doing, he failed to follow the procedures for change of venue required by the Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. arts. 31.01-31.03 (West 1989). Fain did not object to this defect at trial — indeed, he twice requested it, and affirmatively waived in writing his right to complain of the court’s failure to formally transfer venue to Smith County. Fain also did not assign this procedural irregularity as error on appeal. Clearly, neither Fain nor his counsel believed that Fain was harmed in any way when the change of venue he requested was accomplished in this manner.

Both the constitution⁶ and the Code of Criminal Procedure⁷ authorize a change of venue to protect a defendant from the dangers of unfair publicity. The section of the constitution requiring district court to be held in the county seat of the county where the ease is pending, relied upon by the dissent, exists to protect a defendant from the opposite evil: the danger of a secret trial.⁸ This danger is present when the public is prevented from learning where a defendant’s trial will take place. However, it is clear that no such danger was present in this ease, as the dissent concedes; Fain’s trial, held in the county seat of Smith County, was still a highly publicized event. Nevertheless, the dissent reasons that Fain’s highly public trial in the county seat of Smith County deprived the district court of jurisdiction. We disagree that this procedural irregularity in effecting the change of venue is a circumstance that undermines the validity of the trial-court proceeding.

Procedural Mistake Versus Constitutional Error

If the court has jurisdiction of the parties and subject matter, its actions are not void no matter how erroneous they may be. See Fontenot v. State, 932 S.W.2d 185, 190 (Tex.App.—Fort Worth 1996, no pet.). The district judge’s failure to order a formal change of venue did not affect the court’s jurisdiction over the case. Instead, Judge Carter’s action failed to comply with the statutory change of venue provisions. See Tex.Code Crim. Proc. Ann. arts. 31.01-.03 (West 1989). This is a statutory violation, not a constitutional one.

When interpreting our state constitution, we rely heavily on its literal texts, and are to give effect to its plain language. See Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 89 (Tex.1997). Article V, section 7 states, in pertinent part: “The Court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law.” The “plain meaning” rule requires us to give a straightforward reading to the words “except as otherwise provided by law” in the constitutional provision. See Oakley v. State, 830 S.W.2d 107, 109 (Tex.Crim.App.1992) (“those who are called on to construe the Constitution should not thwart the will of the people by construing it differently from its plain meaning”). The plain meaning of this phrase is that the legislature has the power to draft laws that create exceptions to the county seat requirement. One pertinent example is chapter 31 of the Code of Criminal Procedure, which contains the rules pertaining to change of venue. Tex.Code Crim. Proc. Ann. ch. 31 (West 1989 & Supp.1999). The power to draft such provisions is explicitly granted to the legislature elsewhere in the constitution: “The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as provided by law; and the Legislature shall pass laws for that purpose.” Tex. Const, art. Ill, § 45.

Both article V, section 7 and article III, section 45 are enabling clauses, explicitly granting to the legislature the power to pass laws relating to venue. However, when a statutory change of venue procedure is disobeyed, it does not automatically follow that a constitutional violation has occurred. See Garza v. State, 974 S.W.2d 251, 260-61 (Tex.App.—San Antonio 1998, pet. ref'd) (trial court’s failure to hold a hearing before granting change of venue motion violated Code of Criminal Procedure article 31.02, but error was not constitutional). Since the drafters of the constitution explicitly granted to the legislature the power to create both change of venue rules and exceptions to the county seat requirement, it follows that a failure to comply with the change of venue rules results only in a statutory violation. Otherwise, every violation of the venue provisions, no matter how technical, would become “constitutional” in nature.

Indeed, the legislature has amended the change of venue provisions to permit a court to change venue to another county while still maintaining the case on its own docket, as Judge Carter attempted to do in this ease. See Tex.Code Crim. Proc. Ann. art. 31.09 (West Supp.1999). Article 31.09 provides, in pertinent part:

(a) If a change in venue in a criminal case is ordered under this chapter, the judge ordering the change of venue may, with the written consent of the prosecuting attorney, the defense attorney, and the defendant, maintain the original case number on its own docket, preside over the case, and use the services of the court reporter, the court coordinator, and the clerk of the court of original venue. The court shall use the courtroom facilities and any other services or facilities of the district or county to which venue is changed. A jury, if required, must consist of residents of the district or county to which venue is changed.

Tex.Code Crim. Proc. Ann. art. 31.09(a) (West Supp.1999).⁹ Article 31.09 prescribes a manner of changing venue that permits a district court, with the agreement of the prosecutor and the defendant, to accomplish a change of venue while maintaining the cause on its own docket, and preside over the trial in the courthouse of the county to which venue has been changed. The only reason article 31.09 does not apply in this case is that it became effective September 1, 1995, nine months after the parties agreed to try the case in Smith County without a formal change of venue. By employing this procedure nine months before article 31.09’s effective date, Judge Carter anticipated the new statute’s method for changing venue to another county while maintaining the case on the docket of the original court.

Article V, section 7 requires a district court to conduct its proceedings in the county seat of the county in which the case is pending, except as otherwise provided by law. Tex. Const, art. V, § 7 (emphasis added). The dissent complains that the 277th District Court conducted this trial beyond its territorial limits, thereby making its judgment void. However, article 31.09 now authorizes a district court to effect a valid change of venue by sitting in the county seat of another county; more importantly, article V, section 7 and article III, section 45 gave the legislature the power, long before article 31.09’s effective date, to pass laws exempting courts from the county seat requirement. It would make little sense to hold that the trial court’s action violated article V, section 7 in January but not in September when that constitutional provision did not change in the intervening months. All that changed in the interim was that a statutory procedure for accomplishing such a change of venue came into effect. Judge Carter’s premature use of this change of venue procedure should thus be viewed as a procedural error, not a constitutional error. However, even labeling the error “constitutional” does not automatically make it subject to review, since constitutional errors may be waived if not preserved.¹⁰

Waiver and Fundamental Error

There are three types of rules in our legal system: absolute requirements and prohibitions that cannot be waived or forfeited; rights of litigants that must be implemented unless affirmatively waived; and rights of litigants that are implemented upon request and can be forfeited by a failure to invoke them. See Mann v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993). The first category consists only of nonwaivable, nonforfeitable requirements, such as jurisdictional requirements. See id.; see also Methodist Hosps. of Dallas v. Texas Workers’ Compensation Comm’n, 874 S.W.2d 144, 149 (Tex.App.—Austin 1994, no writ). Certain due process violations have been recognized as so fundamental as to require appellate review even if no objection is made at trial. See Skelton v. State, 655 S.W.2d 302, 304 (Tex.App.—Tyler 1983, pet. ref'd) (trial court’s striking of three defense witnesses called to testify to defendant’s character and reputation did not require objection); see also Howeth v. State, 645 S.W.2d 787, 788 (Tex.Crim.App.1983) (court found that fundamental error existed after reviewing sufficiency of the evidence sua sponte). Also in this category is the admission of evidence that operates to render the defendant’s trial fundamentally unfair. See Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990).

Some rights are widely considered so fundamental to the proper functioning of our adjudicatory process that they cannot be forfeited by inaction alone; these rights, which include a defendant’s rights to the assistance of counsel and to a jury trial, are within Mann’s second category. See Marin, 851 S.W.2d at 278-79; see also Tex.Code Crim. Proc. Ann. arts. 1.051(f), (g), (h), 1.13 (West Supp.1999). Thus, a felony defendant’s right to a 12-member jury can be affirmatively waived. See Hatch v. State, 958 S.W.2d 813, 816 (Tex.Crim.App.1997). However, most rights — and all procedural benefits, such as the right to a jury shuffle or a peremptory challenge — fall into the third group of rights that are only implemented at the defendant’s request. See Marin, 851 S.W.2d at 278. “It is well settled that almost every right, constitutional and statutory, may be waived by the failure to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App.1986).

A trial judge’s failure to conform to the proper procedures for a change of venue is properly categorized as falling into either Marin’s second or third category, as an affirmatively waivable right or one that can be waived by inaction. Neither logic nor controlling case law authority provides a compelling reason to elevate this procedural defect into the first category of non-waivable systemic requirements.¹¹

In Jones v. State, 728 S.W.2d 801 (Tex.Crim.App.1987), the Court of Criminal Appeals reversed the court of appeals’ holding that a magistrate’s act of presiding over a probation revocation hearing in violation of the “magistrate statute”¹² constituted fundamental error. The Court of Criminal Appeals observed that the magistrate did have proper jurisdiction over the case, and that acting in a manner proscribed by the Government Code “would constitute merely an irregularity in the proceedings.” Id. at 803-04. Since Jones made no objection and did not even raise the issue on appeal, the court concluded that the lower court had erred in holding that the magistrate’s violation was fundamental error mandating reversal. See id. at 804.

Similarly, in McKinney v. State, 880 S.W.2d 868 (Tex.App.—Fort Worth 1994, pet. ref'd), McKinney’s counsel did not object when the trial judge allowed a magistrate to conduct the voir dire in a felony case, a delegation of duties not permitted under the Government Code. See id. at 869; Tex. Gov’t Code Ann. § 54.656 (West 1998). On appeal, the court noted that the trial court did not lack jurisdiction and described the improper delegation of duties as a procedural “irregularity.” McKinney, 880 S.W.2d at 870. Following Jones, the court held that McKinney waived the error by failing to object at trial. See id. Thus, under McKinney, even an improper delegation of the trial judge’s duty to conduct voir dire proceedings in a felony case does not constitute fundamental error.

Jones and McKinney support the conclusion that a district judge’s failure to order a formal change of venue belongs in Mañn’s third category: the defendant must object to this defect at trial to preserve error on appeal. However, Fain’s informed, written waiver of his right to object to the defective change of venue in this case would prevent this Court from considering the error even if it belongs in Mañn’s second category of rights that can only be affirmatively waived. The trial judge’s mistake did not deprive Fain of any of his basic constitutional rights, and therefore any error was not fundamental.

The factual circumstances of this case distinguish it from other cases that have labeled similar procedural defects violations of article V, section 7. In Stine, for instance, the complaint was that the proceedings had taken place at a hospital and away from the county seat. See Stine, 908 S.W.2d at 430-31 (plurality op.). That case did not involve a change of venue at all; instead, the violation is of a more constitutional dimension because it evokes concerns about secret proceedings and the defendant’s right to a public trial. A defendant may request a change of venue if he believes that there is either “so great a prejudice against him that he cannot obtain a fair and impartial trial,” or a “dangerous combination against him instigated by influential persons” in the county of original venue. Tex.Code Crim. Proc. Ann. art. 31.03(a) (West 1989). Thus, a transfer of venue defectively accomplished does not raise the constitutional concerns in Stine of secret proceedings or a closed trial when a public trial is held in the county seat of the new venue.

Similarly, the facts of the present case distinguish it from Howell v. Mauzy, 899 S.W.2d 690 (Tex.App.—Austin 1994, writ denied). In that case, the trial judge conducted the hearing on a motion to transfer venue and plea in abatement outside the county in which suit was pending. See id. at 698-99. This Court described the judge’s action as a violation of article V, section 7. See id. at 700. However, in that case, the same suit was already pending in two different counties when the venue hearing was held, a situation that constitutes a jurisdictional defect because it was uncertain which of two courts had jurisdiction over the case. That concern is not raised when the same judge with jurisdiction over the case merely transfers the locus of the proceedings to another county and presides over the trial, as in the present case.¹³

Two dated supreme court cases involving article V, section 7 are also distinguishable. In Whitner v. Belknap, 89 Tex. 273, 34 S.W. 594 (1896), the supreme court held unconstitutional a statute establishing a district court in Texarkana. See id. at 596. Although Texarkana was the largest city in Bowie County, it was not the county seat; therefore the court held that the statute violated article V, section 7 of the constitution. See id. In Turner v. Tucker, 113 Tex. 434, 258 S.W. 149 (1924), the supreme court likewise struck down legislation attempting to create a “Texarkana Court at Law” outside of the county seat. See id. at 150-51. However, both Whitner and Turner were decided prior to the 1949 amendment enabling the legislature to create exceptions to the “county seat” requirement. See Tex. Const. Art. V, § 7. Furthermore, the legislation at issue in those cases purported to permit trials in a place not the county seat of any county; in this case, Fain’s trial was held in the county seat of Smith County. Finally, Whitner and Turner were cases deciding the constitutionality of statutes, and did not involve or address the issue of waiver. Those opinions are therefore not instructive under the circumstances of the present case.

Fain agreed to an informal transfer of venue to ensure that local publicity about the case would not result in prejudice in his trial. Fain’s constitutional right to a public trial was not violated, nor was he denied due process. Although the trial judge made a procedural error in his attempt to change venue while maintaining the case on his court’s docket, Fain did not object to this defect at trial or even raise it as error on appeal. There was no fundamental error committed in this case; as established above, the error was not jurisdictional. Therefore, we should not address it on appeal, whether as assigned or unassigned error. See Davis v. State, 956 S.W.2d 555, 560 (Tex.Crim.App.1997) (reversing court of appeals for considering unpreserved error on appeal when trial court did not lack jurisdiction and conviction was not void).

Having disposed of the unassigned point of error on which the panel voted to reverse Fain’s conviction, we will now address the six points of error assigned by appellant. Assigned Error

Appellant has assigned six points of error.¹⁴ First, appellant contends that he was denied due course of law when the trial court failed to conduct a hearing on the motion for new trial until the motion had been overruled by operation of law. Second, Fain claims that he was denied effective assistance of counsel when his appointed counsel miscalculated the date the motion for new trial would be overruled by operation of law, depriving Fain of a hearing on his motion for new trial. In his final four points of error, appellant complains of evidentiary rulings. Fain contends that the trial court erred in admitting hearsay, permitting a witness to reveal his occupation, overruling an objection to evidence illegally seized, and allowing evidence of an extraneous act without the notice required by Rule 404(b) of the Texas Rules of Criminal Evidence.¹⁵

Appellant does not challenge either the legal or factual sufficiency of the evidence to sustain the conviction. However, a brief recitation of the facts will place the points of error in perspective.

FACTUAL BACKGROUND

Sandra Dumont worked as a blackjack dealer. On July 24, 1994, she was dealing at Fat Tuesday’s, a club on Sixth Street in Austin. It was a slow Sunday night and the manager told Dumont she could leave early. She gathered up her things and made a phone call, dialing a call-back pager number. Almost immediately a male caller returned her page; the manager handed the phone to Dumont and when she concluded the call, he escorted Dumont to her car and watched her drive away safely. It was 11:30 p.m. He never saw Sandra Dumont again.

The next morning an Austin police officer observed a car with a flat tire stalled near a large open field in Round Rock. Sergeant Michael Phillips passed by the car on his way to and from work; after two days he stopped to investigate. From the license plate and VIN number he discovered that the vehicle belonged to Sandra Dumont, but it had not been reported as stolen. The car remained near the field for two more weeks. On August 12, 1994, Phillips read in the newspaper that Dumont and her car were missing. By then, the Williamson County Sheriffs office had towed away the abandoned car. Phillips recalled that he had smelled a foul odor coming from the field, and he returned to investigate. His findings led him to summon the Round Rock Police.

Dwayne Tucker operates blackjack games at several clubs; Dumont was his employee. Tucker became concerned when Dumont did not appear at his dealers’ meetings on July 26 and August 2,1994. On August 9, Tucker asked Laura Patterson, a friend of Dumont’s, to accompany him to Dumont home’s. There they discovered that the mail and newspapers had been accumulating since July 25. They notified the police. Dumont’s address book, found in the house, contained the entry “Roger Fain 218-4655.” Patterson testified that on five or six occasions, Dumont had sought her counsel regarding Dumont’s relationship with Fain. Despite some frustrations, Dumont told her friend on July 10 that she intended to continue the relationship.

Dumont’s skeletal remains were found in the field adjacent to the location of her abandoned car. Dr. James Reynolds, Dumont’s dentist, was able to identify Dumont’s skull and broken jawbone. According to the medical examiner and a forensic anthropologist, the fracture to Dumont’s jaw occurred at or just before her death. The cause of death was a bullet wound to the head; the size of the holes in the skull indicated that a .22 caliber weapon was used.

When the police interviewed Fain, they observed an injury to his right hand. The record shows that his hand was not injured on July 24, but was injured on July 25. Fain told the police that the lid of his truck’s tool box fell on his hand; he told someone else that he fell on his hand when his horse was spooked. To another individual Fain claimed that the hood of a truck fell on his hand, and to yet another he explained that he hurt his hand with a hammer.

Fain sought treatment for a broken hand at the emergency room of Seton Hospital Northwest on July 26. He told his nurse that the injury was caused by the falling lid of his tool box. Later Fain told the x-ray technician that he injured his hand “fighting”; the technician examined the x-ray and was not surprised by this explanation. Dr. David Mosier performed the surgery on appellant’s hand. He likened the injury to the fracture of a boxer’s hand following a blow sufficiently strong to break a jaw. Such a break is usually not accompanied by bruising, and there was no bruising on appellant’s broken hand.

Fain first denied that he knew Sandra Dumont. When the police asked him if he killed her, he replied: “I didn’t do it. I can’t swear to God that I didn’t do it, but I didn’t.” There was evidence that Dumont had been seen talking with Fain at a nightclub and had attended a party at Fain’s house. Jill O’Donnell Wilkes testified that Fain admitted to her that he was having a sexual affair with Dumont. John Cochrun gave similar testimony.

Fain lived approximately one mile from the field where Dumont’s body was found. A search of his home turned up a roll of film; when developed it contained a photograph of the field. The police also found in appellant’s home a leather pouch containing .22 caliber bullets. James Thompson, the son of one of Fain’s admitted lovers, testified that he had seen Fain shoot a .22 caliber pistol that he identified as being owned by Fain’s wife, Debra. Another witness had observed the leather pouch in Fain’s truck and had seen .22 caliber shells in Fain’s home.

Sunny Thompson, mother of James, acknowledged that she and Fain had had a lengthy sexual relationship. She testified that she was with Fain in his home from 10:00 p.m. on the night of July 24 until 3:00 a.m. the next morning. The jury did not find this alibi credible.

Hearing on Motion for New Trial

The trial judge did not schedule a hearing on appellant’s motion for new trial until the motion had been overruled by operation of law. In his first point of error, appellant claims that he was denied due course of law by this failure.

Fain was sentenced on April 3,1995. Trial counsel withdrew and new appellate counsel was appointed on April 10, 1995. On May 2, 1995, within the prescribed 30-day period, counsel filed both a motion and an amended motion for new trial. See Tex.R.App. P. 21.4 (formerly Rule 31(a)(1)).¹⁶ The amended motion was overruled by operation of law when it was not heard within 75 days of sentencing. See Tex.R.App. P. 21.8(c) (formerly Rule 31(e)(1), (3)); State ex rel Cobb v. Godfrey, 739 S.W.2d 47, 50 (Tex.Crim.App.1987). This would have been June 17, 1995; subsequently, the trial court lost jurisdiction. Any hearing beyond that date would have been a nullity. See Cobb, 739 S.W.2d at 50; Garza v. State, 904 S.W.2d 877, 878-79 (Tex.App.—Corpus Christi 1995), aff'd, 931 S.W.2d 560 (Tex.Crim.App.1996).

Appellant acknowledges that the amended motion for new trial was overruled by operation of law on June 17, 1995, but calls our attention to assertions made in his “Motion For Out-Of-Time Hearing On Motion for New Trial.” This motion alleged that the motion for new trial was set for a hearing on June 30, 1995 by agreement of the trial court, the prosecutor, and the defense counsel, all of whom believed this hearing date was timely. The confusion was engendered by calculating the seventy-five day period from the filing of a pro se motion for new trial on April 20, 1995. Counting forward from this date, Fain insists that he was still entitled to a hearing on his amended motion for new trial.

The trial court did not have jurisdiction to entertain the motion for an out-of-time hearing. Moreover, the assertions therein do not prove themselves. Assertions not supported by the record will not be accepted as fact. See Miranda v. State, 813 S.W.2d 724, 738 (Tex.App.—San Antonio 1991, pet. ref'd). Cases on appeal are not decided on assumptions or estimates about the record. See Jenkins v. State, 912 S.W.2d 793, 821 (Tex.Crim.App.1993). Most importantly, even if the assertions in the motion could be accepted as fact, appellant failed to preserve his complaint that the trial court, should have held a timely hearing by not objecting to any untimely setting. See Baker v. State, 956 S.W.2d 19, 24-25 (Tex.Crim.App.1997). The first point of error is overruled.

Ineffective Assistance of Counsel

In the second point of error, appellant claims that he was denied the effective assistance of counsel on appeal when his counsel “miscalculated the date that appellant’s motion for new trial would be overruled by operation of law.” This point was briefed together with the first point of error; the complaint is directed against Fain’s first appellate attorney, and not to appellant’s trial counsel or present appellate counsel.

The burden of proving ineffective assistance by a preponderance of the evidence rests upon the convicted defendant. See McFarland v. State, 845 S.W.2d 824, 842 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffective assistance claim. See Strickland v. Washington, 466 U.S. 668, 700, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).¹⁷ The two-pronged Strickland test has been adopted in Texas for resolving allegations of ineffective assistance of counsel under both the federal and state constitutions. See Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). The Strickland standard is to be evaluated by the totality of the representation rather than by isolated acts or omissions of trial counsel. See Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Banks v. State, 819 S.W.2d 676, 681 (Tex.App.—San Antonio 1991, pet. ref'd). Strickland has never been interpreted to entitle an accused to errorless or perfect counsel. See Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App.1986).

An appellate court is normally bound by the record before it. See Miranda, 813 S.W.2d at 738. Allegations of ineffective assistance will be sustained only if they are firmly founded in the record which affirmatively demonstrates the alleged ineffectiveness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996), cert. denied, — U.S. -, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). Appellant has not directed our attention to anything in the record supporting his claim of miscalculation except the assertions in the motion for an out-of-time hearing on the motion for new trial, which cannot be accepted as fact. Without any basis in the record for his isolated claim of miscalculation, appellant has not met Strickland’s two-pronged test for evaluating ineffective assistance of counsel claims under the Sixth Amendment. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. The second point of error is overruled.

Hearsay Testimony

Appellant’s third point of error urges that the trial court erred in admitting the testimony of Laura Patterson. This witness testified that she and Sandra Dumont attended high school together in Vermont, and had stayed in touch afterwards. When Dumont moved to Austin she lived with Patterson until she found her own apartment. Patterson revealed that she and Dumont often discussed personal aspects of their lives, sharing details of their personal and professional relationships.

On July 10, 1994, Patterson was taking Dumont to the bus station; on the way they had a conversation about personal relationships, which was not unusual for the two friends. Patterson testified that Dumont seemed frustrated by the way things were going with Roger Fain. The State asked Patterson if Dumont expressed her intent concerning the future of this relationship. The court overruled appellant’s hearsay objection. Patterson testified that Dumont told her that despite the problems, she intended to continue her relationship with Fain.

Appellant contends that the objected-to hearsay had no probative value and did not fall within any exception to the hearsay rule. The State urges that Patterson’s testimony was admissible under the state-of-mind exception to the hearsay rule. See Tex.R. Evid. 803(3). That rule provides in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

In Pena v. State, 864 S.W.2d 147, 149-50 (Tex.App.—Waco 1993, no pet.), the court relied on Rule 803(3) to allow a witness to recount a murder victim’s statements that she wanted to leave the defendant but felt economically trapped; the court said that this reflected her state of mind. See also Green v. State, 839 S.W.2d 935, 942 (Tex.App.—Waco 1992, pet. ref'd) (state of mind exception to hearsay rule applies to statements admitted to prove declarant subsequently acted in accordance with state of mind); see generally 2 Steven Goode, Olin G. Welborn, III & M. Michael Sharlot, Guide To The Texas Rules of Evidence: Civil and Criminal, 803.7 at 136-140 (Texas Practice 1993); Hulen D. Wendorf, David A. Schleuter & Robert R. Barton, Texas Rules of Evidence Manual, Rule 803(3) at VIII-57 (3d ed.1994).

The complained-of evidence was offered to show the victim’s state of mind on July 10, some two weeks before her disappearance, as to her intent to continue her relationship with Fain. The admissibility of an out-of-court statement under an exception to the general hearsay exclusion rule is within the trial court’s discretion. See Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996). The trial court did not abuse its discretion in admitting the evidence in question.

Moreover, inadmissible testimony can be rendered harmless if the same or similar evidence is admitted without objection at another point in the trial. See Mayes v. State, 816 S.W.2d 79, 88 (Tex.Crim.App.1991). On cross-examination, appellant’s counsel elicited from Patterson that prior to July 10, she and Dumont had discussed Dumont’s relationship with Fain five or six times. Penny Diaz testified that she saw appellant and Dumont talking in a club called Rumors. Gary Zimmerman saw them together at a party at appellant’s house. John Cochrun testified that Fain knew Dumont. Jill O’Donnell Wilkes stated that Fain admitted that he had a sexual relationship with Dumont. Any error in the admission of the objected-to evidence was rendered harmless by appellant’s failure to object to similar evidence at other times during the trial. The third point of error is overruled.

Evidence of Witness’s Law Enforcement Background

In the fourth point of error, appellant contends that the trial court erred in permitting the State to introduce the testimony of Terry Vinson, as it indirectly informed the jury that appellant had previously been in trouble with the law. Terry Vinson was a deputy sheriff from Cameron County. In a colloquy to the bench, the prosecutor outlined the testimony that Vinson would give. Appellant’s trial counsel indicated concern but expressly stated that he “had no problem” with Vinson testifying that he had experience in searching fields, that he knew appellant and knew the brand of cigarettes appellant smoked. Defense counsel did object to identifying Vinson as a deputy sheriff from Cameron County and to any testimony about his background in law enforcement. The record does not reflect a clear-cut adverse ruling on that objection, and appellant has not pointed us to such a ruling. An adverse ruling must be eonclusory; it must be clear from the record that the trial court overruled the objection or the error is not preserved. See Powell v. State, 897 S.W.2d 307, 310 (Tex.Crim.App. 1994), cert. denied, 516 U.S. 808, 116 S.Ct. 54, 133 L.Ed.2d 19 (1995); Ramirez v. State, 815 S.W.2d 636, 643 (Tex.Crim.App.1991). Nevertheless, the court’s ruling may be implied rather than express. See Rey v. State, 897 S.W.2d 333, 336 (Tex.Crim.App.1995). During the colloquy, appellant’s counsel inquired if the court was going to let the witness “jump up and tell he’s a deputy sheriff ... with Cameron County.” The trial court responded, “I’m going to let him do that.” We conclude that this is sufficient to preserve error, if any, as to Vinson’s occupation. All other complaints about Vinson’s testimony were waived.

Vinson testified that he had been a deputy sheriff with Cameron County for thirteen years, where he gained expertise in searching open fields. Williamson County officials enlisted his help in searching the field where Dumont’s remains were found. He related that he found a condom, a tampon, and five Marlboro menthol cigarette butts during his investigation. Vinson also stated that he was acquainted with appellant and knew that he smoked Marlboro menthol cigarettes.¹⁸

A trial court’s evidentiary rulings are reviewed for abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g). An abuse of discretion is established “only when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). Moreover, error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. See Tex.R. Evid. 103(a). We conclude that the trial court did not abuse its discretion in allowing the witness to reveal his occupation. The fourth point of error is overruled.

Search of Tool Box

In his fifth point of error, appellant complains that the trial court erred in admitting “evidence illegally seized from a toolbox on appellant’s truck” (emphasis added). Appellant’s claim is based on the Fourth and Fourteenth Amendments to the United States Constitution.¹⁹ Both appellant and the State have briefed the question presented on the basis of the validity of the warrantless seizure of the truck and subsequent warrantless search of the truck at the police station. Appellant does not reveal the evidence “from” the tool box to which he makes reference in his point of error. The trial court withheld its ruling on the pretrial motion to suppress evidence resulting from the search of appellant’s pickup truck. During trial, and out of the presence of the jury, the court conducted a hearing on the matter, then overruled the objection and denied the motion to suppress.

Lieutenant Dan LeMay of the Round Rock Police Department was the only witness at the hearing. The evidence shows that on August 17, 1994, after returning from a trip to Florida, Fain spent the night at the apartment of his estranged wife in Austin. In the early hours of the morning he was awakened by police officers who had a warrant for his arrest. His pickup truck was in the parking lot of the apartment complex; from their surveillance, the police knew that appellant’s wife had been driving the truck.

There was a large white tool box in plain view in the bed of the truck, which the police had observed before on many occasions. The officers seized the truck without a warrant and removed it to the Round Rock police station, where it was searched. When asked why the truck had been seized, Lt. LeMay related appellant’s story that the lid of the tool box had caused the injury to his broken hand. He did not testify that he or any one else believed that the truck contained contraband or evidence of the instant offense. Probable cause to arrest does not automatically provide probable cause to search, although some of the information may be relevant. See United States v. Jones, 994 F.2d 1051, 1055 (3d Cir.1993); Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 3.1(b), at 7 (3d ed. West 1996).

Even if it could be said, as appellant argues, that the warrantless search was without probable cause and invalid, the error in the admission of any fruits of the search was harmless error under the circumstances presented. If there is an invalid search but none of the evidence seized is offered into evidence, no error occurs. In the instant case, appellant has limited his point of error to evidence seized from the tool box but he does not tell us what these items were or direct our attention to the record where such items were introduced. If the evidence seized from the tool box was not introduced, then no error is presented.

Moreover, it was not the State but appellant who first elicited evidence of the search of the pickup truck. On the cross-examination of Steve Robertson, a chemist with the Department of Public Safety, appellant developed the fact that Robertson had participated in the warrantless search and had recovered “quite a few hairs.” After conducting a hair analysis, Robertson determined that none of the hair removed from the pickup truck matched Dumont’s hair samples. The State then introduced two photographs of the truck taken after its seizure, arguing that appellant had opened the door to this evidence. Katherine Zeller, a DPS employee, testified that DNA analysis revealed that cigarette butts found in the truck belonged to appellant and no one else. This evidence was non-incriminatory and consistent with other evidence that appellant was a smoker. The State did introduce the tool box itself into evidence, demonstrating the rubber padding under the lid to discredit appellant’s story that the falling lid had injured his hand.

Under the rule of optional completeness, when part of an act is given in evidence by one party, the other party may introduce the rest of the act and any other acts necessary to make it fully understood. See Tex.R. Evid. 107. Here, appellant first elicited evidence of the search and the partial fruits of that search favorable to him. The State was then properly permitted to inquire into the same subject matter. See id. Even if Rule 107 was inapplicable, any error in admitting the tool box was harmless beyond a reasonable doubt. See Tex.R.App. P. 42.2(a) (formerly Rule 81(b)(2)). Prior to the seizure of the truck, several officers had seen the truck and the tool box in plain view and observed the tool box’s features. The introduction of the tool box and its rubber-padded lid was unnecessary to discredit appellant’s explanation to the police of his injury because that version had been undermined by appellant’s conflicting stories to other witnesses. If there was any error in the admission of any evidence complained of, we conclude that the error was harmless beyond a reasonable doubt and did not contribute to appellant’s conviction or punishment. .The fifth point of error is overruled.

Extraneous Act

In his sixth point of error, appellant contends that the trial court erred in admitting, over timely objection, evidence of an extraneous act when the State failed to give Fain notice as required by Rule 404(b) of the Texas Rules of Evidence.

Penny Diaz worked as a bartender at a club called Rumors; Fain’s wife, Debra, also tended bar in this club. Diaz testified that Fain frequented the club and that Dumont had also been a “loyal customer,” coming in with certain associates from her work. She related that Fain often visited with this group and that she had seen appellant talking alone with Dumont on two occasions. She stated that Fain talked more with the women than the men, and often flirted with women in the club, including Diaz herself. As Diaz began to relate a telephone conversation from Fain, defense counsel objected. The prosecutor then argued to the court: “We intend to show that he calls women and asks them to meet him places. And if we show that he has a tendency to meet places [sic], that it’s likely he met Sandra [Dumont] at the field.” Appellant objected that this was evidence of other wrongful acts being used “to prove the character of a person in order to show that he acted in conformity therewith” contrary to Rule 404(b), and that he had not been given the requisite notice. Tex.R. Evid. 404(b). Appellant’s objections were overruled.

Diaz, a married woman, testified that sometime around September 1993, Fain telephoned her near midnight and asked her to pick him up because his track lights had gone out. He suggested that he would get some beer and they could drive to the lake and talk. He explained that he and his wife had had an argument. Diaz refused to go. When appellant called back, Diaz agreed to meet him (to get him off the phone), but she did not pick him up and did not know how Fain got home.

The State contends that the telephone conversations did not show “other crimes, wrongs, or acts” on appellant’s part and thus were not barred by Rule 404(b). Appellant argues Rule 404(b) excludes more than criminal offenses or misconduct. See Bishop v. State, 869 S.W.2d 342, 345 (Tex.Crim.App.1993). We agree. The intent of this rule is to prevent the introduction of evidence to prove the character of a person in order to show that the individual acted in conformity with that character. This prohibition applies to evidence of extraneous acts or transactions as well as to evidence of extraneous offenses. See Bishop, 869 S.W.2d at 345. Appellant contends that the telephone conversations carried the obvious implication that appellant intended to have sexual relations with a married Mend of his wife. He urges that the conviction must be reversed because of the admission of Diaz’s testimony concerning Fain’s telephone propositions.

Error on appeal, however, cannot be predicated upon a ruling admitting evidence unless a substantial right of the objecting party has been affected. See Tex.R. Evid. 103(a). Moreover, Rule 44.2(b) provides that any non-constitutional error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. Tex. R.App. P. 44.2(b).²⁰ The State argues that any ugly connotations from Diaz’s testimony were dispelled on cross-examination, which revealed her continuing cordial relationship with both Fain and his wife even after these telephone conversations. Evidence was adduced that Diaz spent the night with Fain and his wife on two occasions following arguments with her husband; that at Diaz’s request appellant had assisted her in resolving a problem with her car; and that Diaz had photographs of her new baby taken with appellant and his wife. In addition, Sunny Thompson testified that she had a long-time affair with appellant and kept a diary of their sexual liaisons. Diane Yarbrough admitted having had an affair with appellant and related that she had had sex with appellant near the field where Dumont’s remains were found. Jill O’Donnell Wilkes testified that she was aware of appellant’s sexual relationship with Dumont. We conclude that appellant’s substantial rights were not affected by the introduction of Diaz’s testimony, which only hinted at improper sexual advances by appellant. The sixth point of error is overruled.

CONCLUSION

The informal change of venue accomplished in this case did not deprive the trial court of jurisdiction and was not fundamental error. Through his written agreement of waiver and by failing to object at trial, appellant waived any error on that ground. We therefore hold that the unassigned point of error relied on by the panel does not require reversal of this cause. Furthermore, the six points of error assigned by appellant are without merit. We affirm the judgment of conviction.

1 . The current code is cited for convenience. For the law applicable and in effect at the time of the offense, see Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 913 as amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex. Gen. Laws 1123 (Tex. Penal Code § 19.02(a)(1), (2), since amended).

2 . Because venue was never formally transferred to Smith County, there is also no formal order transferring the case back to Williamson County. As a consequence, the present appeal was brought to this Court from Williamson County.

3 . That provision states, in pertinent part: "The Court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law.” Tex. Const, art. V, § 7.

4 . Including Presiding Judge McCormick, eight judges signed the majority opinion; Judge Over-street concurred only in the result.

5 . A special judge is a person who serves as a judge in a particular case, but is not otherwise a judge. See Miller, 866 S.W.2d at 246.

6 . See Tex. Const, art. Ill, § 45.

7 . See Tex.Code Crim. Proc. Ann. ch. 31 (West 1989 & Supp.1999).

8 . See Stine, 908 S.W.2d at 431 ("Defendants have the right to a speedy and public trial, and the constitutional requirement that court proceedings occur in the county seat is a fundamental way to keep our ... process open and public.”) (plurality op.). Before 1891, there was no "county seat” requirement; the constitution simply required district judges to hold court "at one place in each County in the District.” Tex. Const, art. IV, § 6 (1861); art. IV, § 5 (1866, amended 1869); art. V, § 7 (1876, amended 1891, 1949, 1985). As the dissent points out, the traditional requirement that court be held at a fixed location can be traced to the Magna Carta. See Tex. Const, art. V, § 7, Interpretive Commentary (West 1993). The "county seat” requirement thus should be viewed as a procedural safeguard ensuring a defendant’s basic right to a public trial.

9 . Although the language of this article is somewhat ambiguous, we do not believe that the statute requires a formal change of venue to docket the cause in the new court before the benefit of not forwarding the cause to the docket of the new court is available. Such a construction would render the new procedure meaningless.

10 . See Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990) (right to confront witnesses may he waived); Little v. State, 758 S.W.2d 551, 564 (Tex.Crim.App.1988) (objection to improperly ob-tamed confession held waived); Ex parte Russell, 738 S.W.2d 644, 647 (Tex.Crim.App.1986) (no objection to introduction of void burglary conviction results in waiver) (op. on reh’g); Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App.1986) (impeachment of defendant through evidence of post-arrest silence not fundamental error); Perry v. State, 703 S.W.2d 668, 673 (Tex.Crim.App.1986) (unconstitutionally suggestive identification procedure not fundamental error); Skillem v. State, 890 S.W.2d 849, 880 (Tex.App.—Austin 1994, pet. ref’d) (constitutional vagueness objection to statute held waived).

11 . But see Mellon Serv. Co. v. Touche Ross & Co., 946 S.W.2d 862, 870 (Tex.App. — Houston [14th Dist.] 1997, no writ) (ruling art. V, § 7’s county seat requirement jurisdictional and non-waiva-ble); Isbill v. Stovall, 92 S.W.2d 1067, 1070-71 (Tex.Civ.App. — Eastland 1936, no writ) (holding that consent of parties did not give judge jurisdiction to hear case while vacationing in another county). Stine v. State, 908 S.W.2d 429 (Tex. Crim.App.1995) is not binding authority for the proposition that article V, section 7’s "county seat” requirement is either jurisdictional or non-waivable. Three judges in Stine thought that the district judge’s act of having the parties convene for one day at a hospital to hear the testimony of a doctor and a severely injured witness violated the “jurisdictional” requirement of article V, section 7. See id. at 431 (plurality op.). Judge Meyers agreed that the court's action violated the "county seat” requirement, but pointed out that the requirement is not jurisdictional in nature. See id. at 433-34 (Meyers, J., concurring). While we are persuaded by Judge Meyers’s explanation that the "county seat” provision of article V, section 7 is not jurisdictional, we respectfully disagree with his conclusion that this is a non-waivable, systemic requirement under Marin. Because no other judges joined Judge Meyers's concurrence in Stine, his view that a defendant cannot affirmatively waive an article V, section 7 defect at trial is not binding on this Court.

12 . See Tex.Rev.Civ. Stat. Ann. art.1918c (West 1981), since repealed and recodified at Tex. Gov’t Code Ann. §§ 54.301-.313 (West 1998).

13 . The legislature recognized this difference when it amended the change of venue rules to allow a judge to "borrow” the courtroom and jury pool from another county when the prosecutor, defense attorney, and defendant all consent. See Tex Code Crim. Proc. Ann. art 31.09 (West Supp.1999). As the legislative history shows, the purpose of article 31.09 was to facilitate transfers of venue by allowing judges to retain jurisdiction over cases and use their own court’s services when ordering a change of venue, so as to avoid overtaxing the resources of the transferee court. See House Comm, on Criminal Justice, Bill Analysis, Tex. H.B. 2949, 74th Leg., R.S. (1995). Unlike the situation in Howell, there is no dispute about which court has jurisdiction, since the original court retains jurisdiction at all times.

14 . Appellant has filed a pro se supplemental brief, but he has no right to hybrid representation. See Allridge v. State, 850 S.W.2d 471, 476 (Tex.Crim.App.1991), cert, denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). Therefore, we will not address the points appellant attempts to raise pro se. See id.; see also Scarb-rough v. State, 111 S.W.2d 83, 92 (Tex.Crim.App. 1989).

15 . The Texas Rules of Criminal Evidence, which were in effect at the time of appellant's trial, have subsequently been combined with the old Rules of Civil Evidence in the new Texas Rules of Evidence, effective March 8, 1998. The Rules of Evidence are cited throughout this opinion; any substantive differences between the current and former rules are noted.

16 . On August 15, 1997, the Court of Criminal Appeals approved the new Rules of Appellate Procedure, effective September 1, 1997. See Mise. Docket 97-9139 (Tex.Crim.App. Aug. 15, 1997). The order provides that the new rules are applicable to pending appeals on September 1, 1997, unless their application in a particular proceeding would not be feasible or would work an injustice.

17 . In order to show ineffective assistance of counsel under Strickland, an appellant must show: (1) that his trial counsel’s performance was deficient in that counsel made such serious errors that he or she was not functioning effectively as counsel; and (2) that the deficient performance prejudiced the defense to such a degree that the appellant was deprived of a fair trial.

18 . It was not revealed to the jury that Vinson had been an investigating officer of an offense of which appellant had been convicted.

19 . Appellant does not present a separate point of error contending that the state constitutional provision on search and seizure offers greater protection than its federal constitutional counterpart. Moreover, appellant has not proffered specified argument and authorities supporting such contention. If this is appellant’s argument, it is inadequately briefed and will not be addressed. See Tex.R.App. P. 38.1(h) (replacing former Rule 74(d)); Moore v. State, 935 S.W.2d 124, 128 (Tex.Crim.App.1996); Robinson v. State, 851 S.W.2d 216, 222 n. 4 (Tex.Crim.App.1991), cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994); Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App.1991); McCambridge v. State, 712 S.W.2d 499, 501-02 n. 9 (Tex.Crim.App.1986); Tell v. State, 908 S.W.2d 535, 539 (Tex.App.—Fort Worth 1995, no pet.).

20 . Rule 44.2(b) relating to non-constitutional error replaces former Rule 81(b)(2).