Dalby v. State

DICE, Commissioner. The conviction is for driving while intoxicated; the punishment, forty days in jail and a fine of $100. It appears from the record that appellant’s trial was before a jury, with the Honorable H. G. Andrews, Jr., the regular county judge of Jones County, presiding. After entry of judgment upon the jury’s verdict by Judge Andrews, by agreement of the parties Honorable James K. Graham was selected to preside as special judge in the cause in the hearing of appellant’s motion for new trial and matters pertaining to the perfection of an appeal. Following such selection, appellant’s motion for new trial was overruled by Judge Graham and, after notice of appeal was given, appellant duly entered into a recognizance before him. The record fails to show that Judge Graham, as special judge, took the oath of office as required by Art. 555, Vernon’s Ann. C.C.P. In the absence of such a showing, the conviction cannot stand. Parish v. State, Tex.Cr.App., 268 S.W.2d 149; West v. State, Tex.Cr.App., 358 S.W.2d 132; and Ross v. State, Tex.Cr.App., 363 S.W.2d 944. For the reasons stated, the judgment is reversed and the cause is remanded. Opinion approved by the court