      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00292-CR



                                Keith Duchon Garrett, Appellant

                                                 v.

                                  The State of Texas, Appellee




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
        NO. 01-325-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Keith Duchon Garrett appeals his conviction for indecency with a child, urging in a

single issue that, because the trial judge served as district attorney when Garrett was indicted, the

judge was disqualified and the proceeding was void based on a lack of jurisdiction. We will affirm.


                                         BACKGROUND

               In October 2001, Garrett pleaded guilty to indecency with a child by exposure. See

Tex. Pen. Code Ann. § 21.11 (West 2003). At that time, the Honorable Jon R. Carter presided over

the 277th District Court. Pursuant to a plea agreement, Judge Carter deferred adjudication, placed

appellant on community supervision for five years, and ordered Garrett to pay a $2,500 fine and to

serve thirty days in jail. In December 2003, the State filed a motion to set aside Garrett’s deferred
adjudication. An initial hearing on this matter occurred in January 2004. By this time, the

Honorable Ken Anderson presided over the 277th District Court.

                  Judge Anderson began the hearing by calling the case and then saying:


        So, the first thing I need to take up with you and your attorney is you were actually
        prosecuted in 2001 when I was still District Attorney of Williamson County. I just
        checked the file, and it doesn’t appear that I had anything to do with the actual
        prosecution of your case. It was handled by one of the Assistant D.A.s that worked
        for me. So I can hear your case. But if either you or [your attorney] would prefer I
        not hear your case I would be happy to get another judge, and that is entirely up to
        you. So, you will need to talk about it.


The record reflects that Garrett then conferred with his counsel, and Judge Anderson asked the

prosecutor to confirm from the file that he had not participated in Garrett’s case as a district attorney.

The prosecutor verified that Judge Anderson had no personal involvement in the case. Garrett’s

attorney responded that “Mr. Garrett has stated that he has no opposition, nor do I, to your continuing

with the case.”

                  At a subsequent hearing in April 2004, Judge Anderson adjudged Garrett guilty and

ordered his probation revoked. After Garrett’s attorney stated that there was no legal reason to

postpone sentencing, the court sentenced Garrett to ten years’ imprisonment. Garrett contends in one

issue that this adjudication of guilt and this sentence should be reversed as void because the court

lacked jurisdiction based on Judge Anderson being disqualified.


                                              ANALYSIS

                  In a criminal case, “[n]o judge . . . shall sit in any case . . . where he has been of

counsel for the State. . . .” Tex. Code Crim. Proc. Ann. art 30.01 (West Supp. 2005); see also Tex.

                                                    2
Const. art. V, § 11. These provisions have been interpreted as mandatory, unwaivable, and

jurisdictional. Gamez v. State, 737 S.W.2d 315, 318 (Tex. Crim. App. 1987). However, for over

a century the court of criminal appeals has consistently held that, as applied to former prosecutors,

a judge is disqualified only if the record affirmatively demonstrates that he actively participated in

the very case as a prosecutor. See, e.g., id. at 319; Ex Parte Miller, 696 S.W.2d 908, 910 (Tex. Crim.

App. 1985); Holifield v. State, 538 S.W.2d 123, 125 (Tex. Crim. App. 1976); Carter v. State, 496

S.W.2d 603, 604 (Tex. Crim. App. 1973); Utzman v. State, 24 S.W. 412, 412 (Tex. Crim. App.

1893). Without more, the mere fact that a judge served as a district attorney while the appellant’s

case was pending does not disqualify the judge. Gamez, 737 S.W.2d at 319-20; Hathorne v. State,

459 S.W.2d 826, 829 (Tex. Crim. App. 1970). As contrary authority, Garrett cites In re K.E.M., 89

S.W.3d 814 (Tex. App.—Corpus Christi 2002, no pet.). In re K.E.M., however, is distinct because

it was a juvenile case governed by the rules of civil procedure, not a criminal case.1

               Garrett does not contend that Judge Anderson, in his former role as district attorney,

actively participated in his case. Moreover, the record demonstrates that Judge Anderson checked

the file to confirm that he had no personal involvement with the case and that the prosecutor verified

this through an independent review of the file. Because Judge Anderson did not actively participate

in Garrett’s case as a district attorney, he was not disqualified from sitting in Garrett’s case as a

district judge. See Gamez, 737 S.W.2d at 319-20; see also Gee v. State, No. 03-04-00302-CR, 2005




       1
         In any event, while we give due regard to the holdings of our sister courts, In re K.E.M. is
not controlling authority, nor can it be viewed as overruling any of the cited opinions from the court
of criminal appeals. 89 S.W.3d 814 (Tex. App.—Corpus Christi 2002, no pet.); see also Gamez v.
State, 737 S.W.2d 315, 318 (Tex. Crim. App. 1987).

                                                  3
Tex. App. LEXIS 5506 (Tex. App.—Austin July 13, 2005, no pet.) (mem. op.) (concluding Judge

Anderson’s previous service as Willamson County’s District Attorney did not disqualify him from

presiding). Garrett’s single issue is overruled.2


                                           CONCLUSION

                Having overruled Garrett’s sole issue, the judgment is affirmed.




                                                W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B.A. Smith and Puryear

Affirmed

Filed: January 27, 2006

Do Not Publish




        2
          As an alternative response to Garrett’s issue, the State urges that, in such circumstances as
those presented here—where a criminal defendant (1) is notified in open court of the judge’s former
service as a district attorney while the case was pending, (2) is provided the choice as to whether the
judge will preside or be recused, (3) is given an opportunity to consult with his attorney on the
matter, and (4) affirmatively waives the judge’s disqualification—the issue shall be considered
waived for purposes of appeal. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999)
(appellant should not be permitted to benefit from “invited error”); Marin v. State, 851 S.W.2d 275,
280 (Tex. Crim. App. 1993) (discussing rights subject to “express waiver”). We do not reach this
issue, however, because the case is resolved by the opinions establishing that a judge is not
disqualified when, as a former district attorney, he did not actively participate in the case. See, e.g.,
Gamez, 737 S.W.2d at 319.

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