                            NUMBER 13-18-00152-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

EDUARDO LUNA JR.,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 107th District Court
                        of Cameron County, Texas.



                       MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

      Eduardo Luna Jr. pled guilty to two counts of aggravated sexual assault of a child

younger than fourteen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B). The

trial court assessed punishment at ten years’ imprisonment on each count to run

concurrently. By one issue, which we address as two, Luna argues that (1) the trial court
erred in granting a new sentencing hearing without his consent, and (2) in the alternative,

his convictions violated the Double Jeopardy Clause of the Fifth Amendment of the United

States Constitution and Article 1, Section 14 of the Texas Constitution. We affirm.

                            I.     PROCEDURAL BACKGROUND

      On June 22, 2016, Luna was indicted for two counts of aggravated sexual assault

of a child younger than fourteen years of age. See id. Luna reached a plea agreement

with the State in which he agreed to plead guilty in exchange for the State recommending

that his sentence not exceed twenty years, as opposed to the statutory maximum ninety-

nine years imprisonment. The trial court accepted Luna’s plea and scheduled Luna’s

sentencing hearing for a later date. Due to a conflict in scheduling, the Honorable Judge

Benjamin Euresti Jr. of the 107th District Court of Cameron County, who accepted Luna’s

plea of guilty, was unable to preside over the sentencing hearing. Instead, the sentencing

hearing was held in the 357th District Court of Cameron County before the Honorable

Judge Juan A. Magallanes. After hearing testimony and evidence, Judge Magallanes

continued the case to deliberate on Luna’s punishment. Prior to the next hearing, the

State informed Judge Magallanes ex parte that it did not believe that Judge Magallanes

had jurisdiction to assess punishment based upon the unitary trial doctrine. On February

7, 2018, Judge Magallanes held a sentencing hearing in which he informed the parties

that he was transferring the case back to Judge Euresti for sentencing, over Luna’s

objection. On February 27, 2018, Judge Euresti held a sentencing hearing and assessed

Luna’s punishment at ten years’ imprisonment on each count of the indictment, with the

sentences to run concurrently. This appeal followed.

                                    II.    DISCUSSION



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       Luna argues that the unitary trial doctrine did not bar Judge Magallanes from

determining his sentence, and therefore, the second sentencing hearing and assessment

of punishment by Judge Euresti was “a void judicial action” as it constituted a new trial as

to the punishment phase. In the alternative, Luna argues that his constitutional right

against double jeopardy was violated.

A.     Void Judicial Action

       The State concedes that the unitary trial doctrine did not bar Judge Magallanes

from assessing Luna’s punishment, but argues that the sentencing hearing and

assessment of punishment by Judge Euresti after the case was transferred back to his

court did not constitute a new trial. Luna argues that pursuant to Texas Government

Code § 24.003(b)(2), once Judge Magallanes accepted the case and held a sentencing

hearing where evidence was introduced and witnesses testified, he was required to “hear

and determine” Luna’s sentence. See TEX. GOV’T CODE ANN. § 24.003(b)(2). However,

as the State points out, the statute does not require such an action, but rather specifically

states: “Unless provided otherwise by the local rules of administration, a district judge in

the county may: . . . (2) hear and determine any case or proceeding pending in another

district court in the county without having the case transferred.” Id. (emphasis added).

Therefore, Judge Magallanes was not required to determine Luna’s sentence. Id.

       The Texas Constitution expressly permits district judges to “exchange districts, or

hold courts for each other when they may deem it expedient[.]” TEX. CONST. art. V, § 11.

Pursuant to the exchange of benches section in the government code, district judges have

wide discretion to temporarily exchange benches with the judge of another district court

in the county, hear and determine matters pending in other district courts within the



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county, and transfer civil or criminal cases to the docket of another district court within the

same county. See TEX. GOV’T CODE ANN. § 24.003. A district judge in a county may hear

and determine any part or question of any case or proceeding pending in any of the district

courts, and any other district judge may complete the hearing and render judgment in the

case or proceeding. Id. § 24.003(d). Further, nothing in § 24.003 of the Government

Code or article V, § 11 of the Texas Constitution requires a written order or explanation

for an exchange of benches by district judges. See Mata v. State, 669 S.W.2d 119, 121

(Tex. Crim. App. 1984). Accordingly, either judge had the authority to hear the case and

assess punishment.

       Luna asserts that the second sentencing hearing held before Judge Euresti

amounted to a “new trial as to only the punishment phase” without his consent. Luna,

however, has not provided any legal analysis, authority, or argument to support the

assertion that the second hearing “effectively granted a new trial.” Without substantive

argument or supporting authorities, an issue cannot be adequately evaluated, and will be

overruled. See TEX. R. APP. P. 38.1(i); Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App.

2000) (explaining that arguments that fail to cite to authority in support of claim present

nothing for review). Therefore, we overrule Luna’s first issue.

B.     Double Jeopardy

       Luna alternatively argues that jeopardy attached when Judge Euresti agreed to

cap Luna’s punishment during the plea hearing, and that Judge Magallanes “declared a

mistrial on lack of jurisdiction,” which bars his re-prosecution, and therefore the second

sentencing hearing was impermissible.




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       Luna’s argument is based on his contention that Judge Magallanes effectively

“declared a mistrial” when he transferred the case back to Judge Euresti. This argument

comes from his own interpretation of the Texas Government Code. Luna argues that

“once accepted, and to promote finality, Sec. 24.003(b)(2) of the Texas Government Code

should be interpreted to require a determination from the district judge who is acting in

lieu of another district judge in the same county during a pending criminal proceeding.”

However, the statute is clear that the judge “may: . . . hear and determine any case . . . .”

TEX. GOV’T CODE ANN. § 24.003(b)(2) (emphasis added). A statute’s words are the surest

guide to its intended meaning and, therefore, we focus our analysis upon the plain

language of the statute. Ex parte Ervin, 187 S.W.3d 386, 388 (Tex. Crim. App. 2005);

see also TEX. GOV’T CODE ANN. § 311.011 (words and phrases should be read in context

and, unless they have acquired a specialized or technical meaning, construed according

to their common usage). We interpret a statute according to the literal meaning of the

words in the statute, unless doing so would lead to an absurd result that the legislature

could not have intended. Ex parte Ervin, 187 S.W.3d at 388. Accordingly, we will not

construe “may” to mean “require” as Luna argues. Therefore, Judge Magallanes’s actions

did not constitute a declaration of a mistrial as he had the authority to transfer the case

back to Judge Euresti for sentencing.

       We overrule Luna’s second issue.

                                    III.   CONCLUSION

       The judgment of the trial court is affirmed.



                                                                NORA L. LONGORIA
                                                                Justice

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Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
18th day of July, 2019.




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