      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-09-00331-CR



                                         James Coy, Appellant

                                                    v.

                                     The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
       NO. D-1-DC-06-302226, HONORABLE JIM CORONADO, JUDGE PRESIDING



                               MEMORANDUM OPINION


                  Appellant James Coy pleaded guilty to assault with family violence and was placed

on deferred adjudication community supervision. See Tex. Penal Code Ann. § 22.01 (West Supp.

2009). The State subsequently moved to adjudicate, alleging that appellant violated the terms of his

supervision by failing to pay his fine, fees, and costs, and by committing another assault. After a

hearing before a magistrate and based on the magistrate’s findings and recommendations, the trial

court adjudicated appellant guilty and sentenced him to ten years in prison and a $473.82 fine.

In three points of error, appellant contends that the referral of the adjudication motion to the

magistrate was unconstitutional and otherwise unlawful. We overrule these contentions and affirm

the conviction.

                  In his first point of error, appellant contends that subchapter Q of chapter 54 of the

government code, governing the use of criminal law magistrates in Travis County, violates the Texas
Constitution because it permits a district court to delegate substantial judicial duties to a magistrate

without any meaningful judicial oversight or review of the magistrate’s actions. See Tex. Const.

art. V, §§ 1, 7, 8 (providing for and defining jurisdiction of district courts); Tex. Gov’t Code Ann.

§§ 54.970-.984 (West 2005) (criminal law magistrates in Travis County). Although he purports to

challenge the constitutionality of the entire subchapter, appellant’s argument is directed against

section 54.982(b), which provides that “[i]f the [referring district] court does not modify, correct,

reject, reverse, or recommit an action of the magistrate, the action becomes the decree of the court.”

Tex. Code Crim. Proc. Ann. art. § 54.982(b). Appellant argues that by allowing the action of the

magistrate to become the decree of the court without any further action by the court, section

54.982(b) permits a district court to delegate to a surrogate the judicial authority committed to the

court by the constitution.

                Appellant lacks standing to make this argument because section 54.982(b) did not

operate in this case. Outside the First Amendment free speech context, if there is no constitutional

defect in the application of a statute to the litigant, he does not have standing to argue that the statute

would be unconstitutional if applied to a third party in a hypothetical situation. Santikos v. State,

836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (quoting Ulster County Court v. Allen, 442 U.S. 140,

154-55 (1979)). Thus, it is generally incumbent on a defendant challenging the constitutionality of

a statute to show that in its operation the statute is unconstitutional as to him in his situation. Raby

v. State, 970 S.W.2d 1, 7 (Tex. Crim. App. 1998); Santikos, 836 S.W.2d at 633. In this case, the

magistrate prepared written findings and recommendations and forwarded them to the district court,

which in turn made a written order expressly stating that it had reviewed and adopted the

magistrate’s actions. See Tex. Gov’t Code Ann. §§ 54.981(a), .982(a). The court thereafter rendered

                                                    2
and signed a written judgment adjudicating appellant’s guilt and imposing sentence. Whether

section 54.982(b) violates the Texas Constitution by allowing a magistrate’s action to become the

court’s decree by default is an issue that appellant is in no position to raise because it was not applied

to him. Point of error one is overruled.

                 Appellant makes a similar argument in his third point of error. He contends that the

issues raised and decisions made at an adjudication hearing “go to the very core of judicial power

in a criminal case,” and that to delegate these decisions to a judicial surrogate over his objection

denied him due process and due course of law. See U.S. Const. amends. V, XIV; Tex. Const.

art. I, § 19.

                 The State contends that appellant failed to make an objection preserving this

contention for appeal. Appellant’s only objection to having the adjudication hearing before the

magistrate was made after the State rested at the hearing. Before calling the only defense witness,

who was appellant, counsel stated, “I would like to renew my objection about Mr. Coy hasn’t waived

his right to have Judge Denton hear this case.”1 The magistrate asked counsel, “What is the basis

of the objection?” Counsel replied, “He was the sentencing judge on this particular case . . . .”2 The

magistrate persisted, “What is the legal basis for that?” Counsel responded, “Well, the sentencing

judge is supposed to hear the—any revocations on his judgment.” The magistrate asked, “So is that

your entire objection?” Counsel replied, “Yes, Your Honor.”


   1
       If there was an earlier objection, appellant does not refer us to it and we have not found it.
   2
      The earlier proceedings in this cause were before the Travis County Court at Law Number 4.
See Tex. Gov’t Code Ann. § 25.2292(c) (West Supp. 2009). The cause was transferred to the
district court after the county court at law deferred adjudication and placed appellant on
community supervision.

                                                    3
                We share the State’s doubts as to the adequacy of this objection, but appellant’s

contention is without merit in any event. The court of criminal appeals has stated that “[n]o act of

the magistrate is legally binding unless and until the magistrate’s actions are adopted by the referring

court. . . . [T]he magistrates act only as the agents of the district court . . . .” Kelley v. State,

676 S.W.2d 104, 107 (Tex. Crim. App. 1984) (holding that Dallas County magistrate’s act did not

violate V of Texas Constitution). In the cause before us, the district court referred the motion to

adjudicate to the magistrate, received, considered, and adopted the magistrate’s findings and

recommendations, and rendered judgment adjudicating appellant guilty and imposing sentence. At

every step of the proceeding, the magistrate acted under the supervision of the district court. We

hold that the district court did not improperly delegate its judicial authority and thereby deny

appellant due process or due course of law. Point of error three is overruled.

                Finally, appellant contends that the magistrate was statutorily prohibited from hearing

evidence and making a recommendation regarding the punishment to be assessed following

adjudication of guilt. Appellant acknowledges that a district court is authorized to refer to

a magistrate proceedings involving a motion to proceed to adjudication. Tex. Code Crim.

Proc. Ann. art. § 54.976(a)(10). He argues, however, that the punishment proceeding following

adjudication constitutes a criminal trial on the merits over which a magistrate may not preside. See

id. § 54.976(b). He argues that sections 54.976(a)(10) and 54.976(b) must be read together so as to

permit the referral of the decision to adjudicate, but not the subsequent punishment determination.

                This Court has twice held that a hearing on a motion to proceed to adjudication is

not a contested trial on the merits and may properly be referred to a magistrate. Smith v. State,

936 S.W.2d 434, 435-36 (Tex. App.—Austin 1996, no pet.); Gary v. State, 880 S.W.2d 485, 487

                                                   4
(Tex. App.—Austin 1994, pet. ref’d). Nothing said in Barfield v. State or Lopez v. State, more

recent opinions cited by appellant, is inconsistent with our holdings in Smith and Gary. See Barfield

v. State, 63 S.W.3d 446, 449-50 (Tex. Crim. App. 2001) (citing prior case law and restating

that bifurcated trial procedure applies only to pleas of not guilty before jury); Lopez v. State,

96 S.W.3d 406, 412 (Tex. App.—Austin 2002, pet. ref’d) (same). We hold that the statutory

authority to refer “proceedings involving . . . a motion . . . to proceed to an adjudication”

encompasses both the decision to adjudicate and the determination of the appropriate punishment.

Point of error two is overruled.

               The judgment of conviction is affirmed.




                                              ___________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 11, 2010

Do Not Publish




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