Louis J. Blanchette, Jr. v. The State of Texas--Appeal from County Court of Coryell County

AFFIRMED

MARCH 22, 1990

NO. 10-89-268-CR

Trial Court

# 27702

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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LOUIS J. BLANCHETTE, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From County Court at Law

Coryell County, Texas

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O P I N I O N

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Louis Blanchette, Jr., appeals his conviction of driving while intoxicated, complaining that there was error in the trial court because a special judge was appointed in a manner other than that prescribed by the Texas Code of Criminal Procedure, that such special judge did not take the prescribed oath of office, and that there was no showing in the minutes of the proceedings that such special judge took the oath of office as prescribed by statute. Blanchette's points will be overruled and the judgment affirmed.

The statement of facts reveals that the regular judge of the county court in which Blanchette was convicted appointed a special judge because he believed that in a case "like this . . . the judge should be a licensed attorney." Blanchette objected, asserting that the court did not have "good cause" to appoint a special judge. Though this was his only objection made at trial concerning the special judge, Blanchette, citing article 30.03 of the Texas Code of Criminal Procedure as authority, now asserts that either the parties or the commissioners court, and not the regular judge, should have elected a special judge. See TEX. CRIM. PROC. ANN. art. 30.03 (Vernon 1989). However, article 30.03 governs situations concerning disqualified, absent or disabled regular judges--situations not present in this case. See id.

The applicable statutes here are sections 26.021 and 26.022 of the Texas Government Code, which respectively provide in part that their terms apply only to counties in which "there is no statutory county court at law . . ." and that the "county judge for good cause may at any time appoint a special judge with respect to any pending civil or criminal matter." TEX. GOV'T CODE ANN. 26.021(1), 26.022(a). The record clearly shows the reason the regular judge recused himself and, because the reason was other than his being disqualified, absent, or disabled, there is no conflict between the two codes as to whether the judge had the power to appoint, on his own, the special judge. See id.

Perhaps when Blanchette made his "good cause" objection at trial he was thinking of the Government Code. However, on appeal he does not assert such by a point of error, and absent a suggestion and a showing that this appointment was not for good cause, we will not consider whether the judge's recusal was improper as without good cause under section 26.022 of the Government Code.

As to Blanchette's complaints about the administration of the oath, the transcript on appeal contains a copy of the oath signed by the special judge. Article 30.03 of the Texas Code of Criminal Procedure does not apply. Accordingly, compliance with article 30.05 of the Texas Code of Criminal Procedure, which requires that the clerk enter into the minutes of the proceedings that the oath was duly administered to the special judge, was not necessary. See TEX. CODE CRIM. PROC. ANN. art. 30.05 (Vernon 1989); Williams v. State, 677 S.W.2d 584, 588 (Tex.App.--Austin 1984, no pet). Blanchette's points are overruled.

AFFIRMED

TERRY R. MEANS

DO NOT PUBLISHJustice