Simon v. State
525 S.W.3d 798
Tex. App.2017Background
- Appellant Ryan Jusup Simon was convicted of capital murder; jury sentenced him to life without parole.
- Senior District Judge Michael Wilkinson, a retired judge, sat by assignment and presided over Simon’s trial.
- On appeal Simon raised, for the first time, that the record does not show the assigned judge took the constitutionally required oaths of office.
- Trial record contains no evidence or certificate showing whether Judge Wilkinson executed those oaths.
- Court applied the presumption of regularity for trial court proceedings and required a prima facie showing to rebut it.
- The court found no record proof that the judge failed to take the oaths and therefore declined to reverse the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judge’s assignment was invalid because record lacks oaths | Simon: lack of recorded oath means judge may not have met constitutional oath requirement | State: presumption of regularity applies; appellant must show prima facie evidence judge failed to take oaths | Court: presumption applies; appellant failed to make prima facie showing; issue denied |
| Whether Herrod requires different treatment for retired judges sitting by assignment | Simon: Herrod suggests visiting-judge oath issues need not be presumed regular | State: Herrod limited to visiting judges in county criminal courts; retired district judges sitting in district courts are still district judges | Court: Herrod inapplicable here; different analysis for retired district judges in district courts |
Key Cases Cited
- Wilson v. State, 977 S.W.2d 379 (Tex. Crim. App. 1998) (judge-qualification challenge can be raised on appeal)
- Prieto Bail Bonds v. State, 994 S.W.2d 316 (Tex. App.—El Paso 1999) (retired judges must take required oaths when appointed)
- Murphy v. State, 95 S.W.3d 317 (Tex. App.—Houston [1st Dist.] 2002) (presumption of regularity applies to judge assignment; appellant must prima facie rebut)
- Light v. State, 15 S.W.3d 104 (Tex. Crim. App. 2000) (discussing presumption of regularity standard)
- Herrod v. State, 650 S.W.2d 814 (Tex. Crim. App. 1983) (distinguishing retired judges serving as visiting judges in county courts from retired district judges in district courts)