# Herrod v. State

> Court of Criminal Appeals of Texas · May 25, 1983 · 650 S.W.2d 814

URL: https://www.frixlaw.com/law-library/cases/9642302

## Case

- **Full name:** Mike Allen HERROD, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 25, 1983
- **Citations:** 650 S.W.2d 814; 1983 Tex. Crim. App. LEXIS 1043
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Onion, McCormick, Davis, Campbell
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9642302

## How later opinions describe it (automated extraction)

- applying former TEX. REV. CIV. STATS. art. 1970-31.30 sec. 1(a) (repealed)

## Opinion text

McCORMICK, Judge,
dissenting.
The majority would reverse appellant’s conviction herein because there is nothing in the record before us to show by what authority a retired district judge sat as trial judge in a county criminal court of Dallas County. Because there was no objection or complaint on this ground of error raised at the trial, nothing has been preserved for review and any error has been waived. Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980); Thompson v. State, 537 S.W.2d 732 (Tex.Cr.App.1976). If there is no trial court objection, then only a fundamental error requires reversal. Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979); Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974).
Article 6228b, Section 7, V.A.C.S., (as it was effective at the time of this trial on September 6, 1978), provided that a retired appellate or district court judge, if eligible, may “sit in any court of this state of the same dignity, or lesser, as that from which they retired.... ” (Emphasis added). If it is unnecessary for a written order to be entered for district judges to exchange benches, I see no reason for such an order for a retired judge to sit on a lesser court than that from which he retired absent an objection to the court. See Crawford v. State, 509 S.W.2d 582 (Tex.Cr.App.1974); Peach v. State, 498 S.W.2d 192 (Tex.Cr.App.1973); Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971).
In a similar situation in French v. State, 572 S.W.2d 934 (Tex.Cr.App.1978), and Keen v. State, 626 S.W.2d 309, 311-12 (Tex.Cr.App.1981), it was held that if a judge acts under color of law 1 and reasonably believing himself to be a judge, and discharges the duties of the office, his actions could only be challenged directly in a quo warranto proceeding and not on appeal. Keen v. State, supra; Snow v. State, 134 Tex.Cr.R. 263 , 114 S.W.2d 898 (1937); Ex parte Lefors, 171 Tex.Cr.R. 229 , 347 S.W.2d 254 (1961). See also, Archer v. State, 607 S.W.2d 539 (Tex.Cr.App.1980).
For these reasons, I respectfully dissent.
W.C. DAVIS and CAMPBELL, JJ., join in this dissent.
. As here, under Article 6228b, Section 7, V.A. C.s.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642302. Public record. Not legal advice.