                                    NO. 07-03-0258-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                    JANUARY 25, 2005

                           ______________________________


                   RICHARD EUGENE SMOTHERMON, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

             FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;

                     NO. 21069212; HONORABLE ED SELF, JUDGE

                          _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.


                                MEMORANDUM OPINION


       Following appellant Richard Eugene Smothermon’s plea of guilty to possession of

marihuana, the trial court deferred further proceedings, placed him on probation for eight

years, and assessed a $2,000 fine. In a subsequent adjudication proceeding, appellant

plead not true to the allegations contained in the motion to proceed, but the trial court found
them to be true and sentenced him to ten years confinement. Presenting one issue,

appellant contends the underlying order placing him on deferred adjudication was void, thus

invalidating his subsequent conviction and prison sentence. We affirm.


       In December of 1992, Marvin F. Marshall, a prosecutor in the Castro County District

Attorney’s Office, presented the case against appellant to the Grand Jury for the 242nd

District of Castro County, and the Grand Jury returned an indictment. On January 14,

1993, Marshall, then as Judge of the 242nd District Court, signed an “Order to Transfer” of

appellant’s case from that court to the 64th District Court also of Castro County. As reasons

for the transfer, the order recited, “I presented the case to the Grand Jury and also testified

before them concerning this case.” In August, Jack R. Miller, Judge of the 64th, followed

the terms of appellant’s plea bargain with the State and assessed the probated sentence

referenced above. Then, in September 2000, the State filed a “Motion to Proceed to

Adjudication” in the 64th District Court. In December, Judge Ed Self approved an “Agreed

Order Modifying Probation” extending appellant’s probation for one year. In January 2002,

the State again moved to proceed to adjudication in the 64th, and an “Agreed Order

Modifying Probation” was approved by Judge Self. Finally, in January 2003, the State

moved to adjudicate appellant in the 64th District Court; and the judgment was signed by

Judge Self on March 6, 2003, and appellant was sentenced to 10 years confinement.


       Presenting only one issue, appellant asserts “[t]he judgment of the trial court placing

[him] on deferred adjudication and the subsequent judgment adjudicating [him] guilty of


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unlawful possession of marijuana are void because the trial court’s jurisdiction in the

original proceeding was defective.” Appellant does not contend that Judge Self was

disqualified, that improper venue resulted from the transfer or that the 64th District Court did

not have subject matter jurisdiction, but instead contends that because Marshall was

disqualified from presiding, he did not have the authority to transfer the case to the 64th

District Court where he was convicted, and therefore, because the 64th District Court never

acquired “jurisdiction over the case and over Appellant, the judgment of conviction in this

case is void.” We disagree.


       The Texas Constitution and the Code of Criminal Procedure address disqualification

of judges. Article V, section 11 of the Constitution provides that:


              [no] judge shall sit in any case wherein he may be interested,
              or where either of the parties may be connected with the judge,
              either by affinity or consanguinity, within such a degree as may
              be prescribed by law, or when the judge shall have been
              counsel in the case. . . . When a judge of the District Court is
              disqualified by any of the causes stated above, the parties
              may, by consent, appoint a proper person to try said case; or
              upon their failing to do so, a competent person may be
              appointed to try the same in the county where it is pending, in
              such manner as may be prescribed by law.
              And the District Judges may exchange districts, or hold courts
              for each other when they may deem it expedient, and shall do
              so when required by law. This disqualification of judges of
              inferior tribunals shall be remedied and vacancies in their
              offices filled as may be prescribed by law.




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Under the Code, a judge is disqualified when he: (1) is the injured party; (2) has been

counsel for the accused or the State; or (3) is related to the defendant or complainant by

affinity or consanguinity within the third degree. Tex. Code Crim. Proc. Ann. art. 30.01

(Vernon Supp. 2004-05). The grounds for disqualification of a judge announced in the

Constitution and Code of Criminal Procedure are exclusive. Vargas v. State, 883 S.W.2d

256, 259 (Tex.App.–Corpus Christi 1994, pet. ref’d).


       Although a constitutional disqualification deprives a trial judge of the authority to “sit

in any case wherein he may be interested,” a judge may make orders preliminary to the trial

of the case and transfer such a case to a court having jurisdiction thereof. Koll v. State,

143 Tex. Crim. 104, 157 S.W.2d 377 (1941).              Further, because Judge Marshall’s

disqualification was mandatory and not subject to his discretion, the transfer of the case

was not void. See Blanchard v. Krueger, 916 S.W.2d 5, 19 (Tex.App.--Houston [14th Dist.]

1995, no pet.) (holding that disqualification of a judge renders any order involving judicial

discretion to be void).


       Appellant also argues that because of the disqualification, the judge should have

followed the procedure set out in Rule 18a(c) of the Texas Rules of Civil Procedure to

secure the designation of a qualified judge to preside. However, errors involving the

violation of a statutory procedure and errors involving rules of procedure do not make the

act void, but only voidable. See Davis v. State, 956 S.W.2d 555, 559 (Tex.Cr. App. 1997).




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       Moreover, even if failure to proceed according to Rule 18a(c) was error, our harm

analysis of the error is conducted pursuant to Rule 44.2(a) of the Texas Rules of Appellate

Procedure. Although it would have been a better practice if Judge Marshall had proceeded

to give notice of his disqualification per Rule 18a(c), considering that a change in venue did

not result, that appellant does not contend that Judge Self was disqualified or subject to

recusal and appellant’s plea of guilty based upon a plea bargain, we conclude beyond a

reasonable doubt that the order of transfer did not contribute to appellant’s conviction or

punishment. Appellant’s sole issue is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                           Don H. Reavis
                                             Justice


Do not publish.




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