



Smith                                                               



TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-95-00548-CR





Willie James Smith, Appellant


v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 0924955, HONORABLE JON WISSER, JUDGE PRESIDING






	Willie James Smith appeals from a judgment convicting him of possessing a
controlled substance and sentencing him to confinement for twelve years.  We will affirm the
judgment.


THE CONTROVERSY


	On Smith's plea of guilty and after hearing evidence substantiating his guilt, the
district court deferred adjudication and placed him on probation following his indictment for
possession of a controlled substance.  The State moved afterwards that the court proceed to an
adjudication of guilt based on allegations that Smith committed the offense of aggravated sexual
assault in violation of the conditions of his probation.  The district judge referred the matter to
a Travis County criminal law magistrate.  See Tex. Gov't Code Ann. §§ 54.971-.976 (West Supp.
1997).  
	Following an evidentiary hearing, the magistrate found by a preponderance of the
evidence that Smith committed the offense of aggravated sexual assault and recommended
revocation of his probation and a sentence of twelve-years confinement.  Smith correctly contends
the magistrate's determinations were based on the relative credibility the magistrate assigned the
conflicting testimony given by Smith and by his victim, and certain other evidence.  Smith
objected to the magistrate's finding and recommendations and requested a trial de novo before the
district judge.  The district judge implicitly overruled Smith's objection by finding him guilty of
the possession offense and sentencing him as recommended by the magistrate.


DISCUSSION AND HOLDINGS

	In a single point of error, Smith apparently contends the district court judgment is
void, for want of subject-matter jurisdiction, on the following theory:  (1) the power to make
credibility assessments is exclusively a judicial power vested only in the district courts of the State
by article 5, section 1 of the Texas Constitution; (2) the magistrate therefore lacked power to
make such assessments; and (3) consequently, the district court was powerless to base its
adjudication thereon.  In argument under the point, however, Smith also contends the power to
make credibility assessments is not within the fact-finding power given magistrates in section
54.908(a)(8) of the Texas Government Code.  See Tex. Gov't Code Ann. § 54.908(a)(8) (West
1988).
	By authorizing the magistrate to receive evidence and make findings of fact based
thereon, the legislature necessarily vested in magistrates the power to make credibility judgments. 
See Tex. Gov't Code Ann. § 54.908(a)(2), (8) (West 1988).  We hold accordingly.  We turn then
to Smith's constitutional argument that the district court lacked subject-matter jurisdiction on the
theory indicated.
	The issue reduces to whether the magistrate's conduct of the hearing in the present
case and his resulting recommendations to the district court amounted to the magistrate's presiding
"over a contested trial on the merits" as prohibited by the Government Code. (1)  We hold it did not
because the magistrate's determinations and recommendations are ultimately advisory owing to
the provisions of section 54.912(a) of the Government Code. (2) See Jones v. State, 728 S.W.2d
801, 802-03 (Tex. Crim. App. 1987); Ex Parte Howard, 685 S.W.2d 672, 674 (Tex. Crim. App.
1985); Gary v. State, 880 S.W.2d 485, 486-87 (Tex. App.--Austin 1994, pet. ref'd).  Smith
distinguishes Jones on the ground that Jones failed to preserve error and Howard on the ground
that Howard pleaded true to the allegations in the motion to proceed to adjudication.  The
holdings, rationale, and tenor of the Jones and Howard decisions do not reasonably permit the
distinction, as we stated in Gary; more importantly, the district court's subject-matter jurisdiction
derives from the Constitution and laws of the state and does not depend upon consent or waiver. 
See Curry v. Wilson, 853 S.W.2d 40, 45 (Tex. Crim App. 1993); Scheetz v. Bader, 251 S.W.2d
427, 429 (Tex. Civ. App.--Galveston 1952, writ ref'd).  We believe the constitutional restriction
of the judicial power to the specified courts listed in article 5 of the Texas Constitution, including
district courts, is preserved by the statutory limitations placed upon magistrates.
	Smith does not contend the district court abused its discretion in referring the
matter to the magistrate, in failing to reject the magistrate's recommendations, in failing to afford
Smith an evidentiary hearing in the district court following the magistrate's recommendations, or
any other particular.
	We overrule Smith's point of error and affirm the district-court judgment.


  
					John Powers, Justice
Before Justices Powers, Aboussie and Jones 
Affirmed
Filed:   December 12, 1996
Publish
1.        "A magistrate may not preside over a contested trial on the merits."  Tex. Gov't
Code Ann. § 54.976(b) (West 1988).  
2.        The "referring court may modify, correct, reject, reverse or recommit for further
information any action taken by a magistrate."  Tex. Gov't Code Ann. § 54.912(a) (West
1988).


ted a trial de novo before the
district judge.  The district judge implicitly overruled Smith's objection by finding him guilty of
the possession offense and sentencing him as recommended by the magistrate.


DISCUSSION AND HOLDINGS

	In a single point of error, Smith apparently contends the district court judgment is
void, for want of subject-matter jurisdiction, on the following theory:  (1) the power to make
credibility assessments is exclusively a judicial power vested only in the district courts of the State
by article 5, section 1 of the Texas Constitution; (2) the magistrate therefore lacked power to
make such assessments; and (3) consequently, the district court was powerless to base its
adjudication thereon.  In argument under the point, however, Smith also contends the power to
make credibility assessments is not within the fact-finding power given magistrates in section
54.908(a)(8) of the Texas Government Code.  See Tex. Gov't Code Ann. § 54.908(a)(8) (West
1988).
	By authorizing the magistrate to receive evidence and make findings of fact based
thereon, the legislature necessarily vested in magistrates the power to make credibility judgments. 
See Tex. Gov't Code Ann. § 54.908(a)(2), (8) (West 1988).  We hold accordingly.  We turn then
to Smith's constitutional argument that the district court lacked subject-matter jurisdiction on the
theory indicated.
	The issue reduces