                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 JOHN ALEXANDER LOPEZ,                                          No. 08-10-00112-CR
                                                §
                   Appellant,                                      Appeal from the
                                                §
 V.                                                         Criminal District Court No. 4
                                                §
 THE STATE OF TEXAS,                                          of Tarrant County, Texas
                                                §
                   Appellee.                                      (TC# 1150714D)
                                                 §

                                                 §

                                          OPINION

       John Lopez appeals his conviction for possession with intent to deliver

methamphetamine, a controlled substance, between four and two-hundred grams. Both phases of

trial were tried to the court, and Appellant was sentenced to 5 years’ imprisonment. On appeal,

he raises two issues in which he contends the trial court violated the requirements of

Articles 1.13 and 1.15 of the Texas Code of Criminal Procedure by conducting a non-jury trial.

Affirmed.

       Appellant was indicted on March 27, 2009, for two counts of possession of

methamphetamine with the intent to deliver, more than four grams, but less than two hundred

grams. Initially, the Honorable Judge Mike Thomas, of Tarrant County’s Criminal District Court

Number Four, presided over the case. On April 30, 2009, Judge Thomas acknowledged the

State’s plea bargain offer, which recommended a sentence of eight years’ imprisonment in

exchange for Appellant’s guilty plea.
         On January 5, 2010, the Honorable Judge Phillip Vick, Senior District Judge of the 158th

Judicial District Court, presiding in Criminal District Court Number Four, approved Appellant’s

open guilty plea to Count I of the indictment. In the plea, Appellant acknowledged that he was

pleading guilty to a first degree felony, and that the sentencing range was five and ninety-nine

years. Appellant judicially confessed to the offense charged in Count I, waived his right to a trial

by jury, and consented to written stipulations of evidence. Judge Vick accepted the plea but

postponed making a finding of guilt until sentencing. Two days later, On January 7, 2010, the

presiding judge of the 8th Administrative Judicial Region of Texas signed an Order of

Assignment, assigning Judge Vick to Criminal District Court Number Four for a period of five

days, beginning January 11, 2010.

         On March 12, 2010, Judge Thomas signed a Certificate of Proceedings indicating that

Appellant had previously entered a guilty plea in open court, and adjudicated Appellant guilty of

count one of the indictment. Appellant was sentenced to five years imprisonment by the trial

judge.

         In two issues, Appellant challenges his conviction on the basis that Judge Vick did not

have the authority to accept Appellant’s jury trial waiver as the judge’s appointment to Criminal

Court Number Four did not begin until after Appellant signed the plea. Based on his conclusion

that Judge Vick did not have the authority to accept his waiver, Appellant concludes Judge

Thomas conducted a bench trial in violation of Article 1.15 of the Texas Code of Criminal

Procedure.1


         1
         Texas Code of Criminal Procedure Article 1.13 provides that a criminal defendant, in
non-captial felony cases, has the right to waive his right to trial by jury if upon entering his plea
the defendant personally, in writing, in open court, and be approved by the trial court. See

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       Appellant’s theory of the case is premised on his conclusion that on January 5, 2010,

Judge Vick did not have authority to accept his jury trial waiver pursuant to Article 1.13 of the

Texas Code of Criminal Procedure, because his assignment to the court was not effective until

several days later. Appellant does not challenge the procedure by which he waived his right to a

jury trial, nor does he argue that Judge Vick was not legally qualified to preside over the case.

His argument is limited to the dates of Judge Vick’s assignment, as they relate to the date

Appellant signed his plea. Appellant raises this argument for the first time on appeal.

       As the Court of Criminal Appeals has made clear, “all but the most fundamental

evidentiary and procedural rules (or ‘rights’) are forfeited if not asserted at or before trial.” Davis

v. State, 227 S.W.3d 733, 736 (Tex.Crim.App. 2007), quoting Wilson v. State, 977 S.W.2d 379,

380 (Tex.Crim.App. 1998). While a challenge to a trial judge’s legal qualifications may be

raised for the first time on appeal, an objection to a procedural irregularity in the assignment of

an otherwise qualified judge must be preserved through the usual mechanism. See Wilson, 977

S.W.2d at 380 (abrogating the requirement that a defendant raise such a challenge through a quo

warranto proceeding). Preservation of a complaint for appellate purposes generally requires that

the Appellant demonstrate that a timely and specific complaint was made to the trial court, and

that the court entered a ruling. See TEX .R.APP .P. 33.1(a).

       Appellant’s brief fails to cite to any passage in the record where he objected to Judge

Vick presiding over the plea proceedings, and we have been unable to locate the same in our



TEX .CODE CRIM .PROC.ANN . art. 1.13(a)(Vernon 2005). Similarly, Article 1.15 provides that no
defendant shall be convicted of a felony except “upon the verdict of a jury” unless the defendant
has entered into a knowing and proper waiver except as prescribed by the preceding sections.
See TEX .CODE CRIM .PROC.ANN . art. 1.15 (Vernon 2005).

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review of the proceedings. Because Appellant failed to object in the trial court, the argument he

now attempts to raise on regular appeal is waived. See Wilson, 977 S.W.2d at 380-81. As this is

the only argument challenging the validity of Appellant’s waiver under Article 1.13, the waiver

will stand, and Issue One is overruled.

       Furthermore, having determined that Appellant’s argument regarding Judge Vick’s

authority to accept his waiver has been waived, there is no basis for Appellant’s argument that

Judge Thomas conducted a bench trial, and adjudicated Appellant guilty in violation of

Article 1.15. As this is the only basis on which Appellant challenges Judge Thomas’s guilty

finding, Issue Two is also overruled.

       Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.



January 26, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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