Jennifer Lynn Jones v. State

Opinion filed July 20, 2006 Opinion filed July 20, 2006 In The Eleventh Court of Appeals ____________ No. 11-05-00152-CR __________ JENNIFER LYNN JONES, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 29th District Court Palo Pinto County, Texas Trial Court Cause No. 12,532 O P I N I O N The jury convicted Jennifer Lynn Jones, upon her plea of guilty, of murder and assessed her punishment at forty-eight years confinement in the Institutional Division of the Texas Department of Criminal Justice and a $5,000 fine. We affirm. Issue on Appeal Appellant raises one point of error. She asserts that the trial court erred as a matter of law by proceeding to trial without proper disqualification of the elected district attorney and proper appointment of attorney pro tem for the State. Appellant argues that, because the district attorney did not file a motion and the trial court did not enter orders finding cause for the district attorney=s disqualification or appointing an attorney pro tem for the State, the attorney pro tem was not authorized to act on behalf of the State. Further, appellant argues that there is no record of the attorney pro tem=s oath of office and, therefore, that the State did not have authority to proceed on appellant=s indictment. Appellant did not object at trial to the attorney pro tem prosecuting her case. She must, therefore, establish that the attorney pro tem=s appointment was void to prevail on appeal. Background Facts The elected district attorney, Tim Ford, disqualified himself and his staff due to a family relationship with appellant. The trial court appointed Mike Burns to act as district attorney pro tem. The trial court made this announcement in open court to the jury before beginning voir dire. A notation on the trial court=s docket sheet reflects that Mike Burns was the attorney for the State. There are no other references in the record to the disqualification of the elected district attorney and the appointment of the attorney pro tem. Applicable Law An Aattorney pro tem@ is appointed by the trial court pursuant to Tex. Code Crim. Proc. Ann. art. 2.07 (Vernon 2005). The appointee assumes the duties of the elected district attorney after taking the required constitutional oath of office. Stephens v. State, 978 S.W.2d 728, 731 (Tex. App.CAustin 1998, pet. ref=d). A judge may appoint any competent attorney to perform the duties of the office of the district attorney in cases where the attorney for the State is disqualified or where there is not an attorney for the State. Article 2.07(a). Also, an attorney for the State may request the trial court to permit him to recuse himself in a case for good cause. Article 2.07(b-1). Elected District Attorney and Attorney Pro Tem Unless the appellate record indicates that the attorney pro tem was not properly appointed, it is presumed that he was. Eppes v. State, 10 Tex. 474 (1853); Evans v. State, 769 S.W.2d 319 (Tex. App.CDallas 1989, no writ). Appellant complains that there is no motion or order disqualifying the elected district attorney or written oath of office for the attorney pro tem. We note that Article 2.07 does not require a written motion or order. Moreover, appellant did not request the inclusion of these documents in the clerk=s record. They are not automatically required. See Tex. R. App. P. 34.5; Evans, 769 S.W.2d at 322. Because appellant carries the burden on appeal, in the absence of a request for any written oath or contradicting support in the record, we presume the attorney pro tem was duly and legally appointed. Id. Was Error, if Any, Preserved? Alternatively, if the trial court erred, that error has not been preserved for our review. Appellant was aware of the trial court=s appointment of the attorney pro tem. All documents filed on behalf of the State in this cause were filed by the attorney pro tem. All of appellant=s motions contained service on the attorney pro tem. At no time during the trial did appellant object to the authority of the attorney pro tem to prosecute the case. Appellant=s rights arise from Article 2.07. The Court of Criminal Appeals has held that rules fall into one of three categories: (1) absolute requirements and prohibitions; (2) rights which must be implemented by the system unless expressly waived; and (3) rights which are implemented only upon request and, therefore, can be forfeited. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (en banc). The procedures for appointing an attorney pro tem in Article 2.07 fall into the third category. Modica v. State, 151 S.W.3d 716, 721 (Tex. App.CBeaumont 2004, pet. ref=d); Marbut v. State, 76 S.W.3d 742, 750 (Tex. App.CWaco 2002, pet. ref=d). Appellant=s right to have a duly appointed prosecutor does not concern the jurisdiction of the trial court or the constitutionality of a statute, and it is not so fundamental that it cannot be forfeited. Id. Appellant=s failure to object waived any error. Stephens, 978 S.W.2d at 730. Appellant tries to distinguish her case from Modica and Marbut. She argues that those cases only deal with the failure of the attorney pro tem to take the oath of office and not the failure to disqualify the elected district attorney or to appoint an attorney pro tem by a written order. However, these cases are not distinguishable. All the procedures required in Article 2.07 are forfeited if not objected to at trial. See Modica, 151 S.W.3d at 721; Marbut, 76 S.W.3d at 750; Stephens, 978 S.W.2d at 730. We overrule appellant=s point of error. The judgment of the trial court is affirmed. July 20, 2006 RICK STRANGE Do not publish. See Tex. R. App. P. 47.2(b). JUSTICE Panel consists of: Wright, C.J., and McCall, J., and Strange, J.