SHEDRICK JOSEPH BAPTISTE v. THE STATE OF TEXAS (2026)

OPINION

Chapter 54A of the Texas Government Code permits district court judges to appoint associate judges and refer certain proceedings to associate judges to oversee. The question before the Court is whether the Texas Constitution authorizes an associate judge to preside over voir dire proceedings.

However, we must first address whether Appellant preserved his complaints for appellate review. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Appellant did not object at trial to the associate judge presiding over voir dire. We therefore conclude that Appellant did not preserve his complaints for appellate review. Consequently, we affirm the judgment of the court of appeals.

I. Background

Appellant was indicted for aggravated sexual assault of a child. A jury found Appellant guilty of the lesser-included offense of indecency with a child by sexual contact and assessed punishment at five years’ confinement.

An associate judge, Judge Kimberly McTorrey, presided over the voir dire portion of Appellant's trial and denied two Batson ¹ challenges made by Appellant. Appellant did not object to Judge McTorrey presiding over the voir dire portion of his trial. After voir dire, Appellant moved to supplement the record with some exhibits in support of his Batson challenges, but Judge McTorrey denied the request and advised Appellant to take up the matter with the elected district judge. Later, the elected district judge, Judge Frank Aguilar, heard and ruled on Appellant's request to supplement the record. Judge Aguilar also addressed a problematic juror, whom the parties agreed to excuse and replace with an alternate. Judge Aguilar then presided over the remainder of Appellant's trial and orally pronounced sentence. On appeal, Appellant argued that his conviction was void because Judge McTorrey presided over voir dire. The court of appeals rejected Appellant's contention and affirmed Appellant's conviction and sentence. Baptiste v. State, No. 01-23-00504-CR, 2025 WL 1298310, at *3, *5 (Tex. App.—Houston [1st Dist.] May 6, 2025). We granted Appellant's petition for discretionary review.²

II. Preservation

Preservation of error is a systemic requirement on appeal. Ford, 305 S.W.3d at 532 (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). “Ordinarily, a court of appeals should review preservation of error on its own motion, but if it does not do so expressly, this Court can and should do so when confronted with a preservation question.” Id. (citing Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997)). While the question before the Court is not one of “preservation,” the State asserts that Appellant impermissibly “challeng[es] two statutes as facially unconstitutional for the first time on appeal, contrary to this Court's holding in Karenev v. State[, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009)].” State's Br. at 15. Appellant argues that his judgment is void. Appellant's Br. at 39. We note that a void judgment may be challenged for the first time on appeal. See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001).

In Nix, we described four situations where a judgment of conviction for a crime is void:

(1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant,

(2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law,

(3) the record reflects that there is no evidence to support the conviction, or

(4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright.

Id. at 668 (internal citations omitted, formatting altered). We emphasized that this list was “very nearly ․ exclusive.” Id. Appellant, for his part, makes no attempt to meet any of the four situations laid out in Nix that would render his judgment of conviction void. Instead, Appellant relies on the civil rule we described in Nix: “a judgment is void ․ when there was ․ no capacity to act as a court.” Id. (quoting Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985)). This factual scenario—where Appellant alleges an unauthorized individual presided over only a portion of Appellant's trial proceedings (and that portion was subject to review by the elected district judge)—does not come close to the void judgment situations that are delineated in Nix. Consequently, because Appellant cannot show how his case fits within one of the four situations in Nix, Appellant's judgment of conviction is not void.

Appellant concedes that he is challenging the constitutionality of Sections 54A.006(d) and 54A.008(a)(15) of the Texas Government Code. Appellant's Br. at 36; Appellant's Post-Submission Response at 5 (“Is Mr. Baptiste making a facial challenge? The answer to the question is ‘yes – definitely.’ ”). In Karenev, this Court held that “a facial constitutional challenge to a statute does not implicate an absolute requirement or prohibition that is exempt from ordinary preservation-of-error requirements, and, therefore, such a challenge may not be presented for the first time on direct appeal.” Ex parte Beck, 541 S.W.3d 846, 852–53 (Tex. Crim. App. 2017) (citing Karenev, 281 S.W.3d at 434). In other words, a facial challenge to the constitutionality of a statute “falls within the third category” of Marin rights that are subject to forfeiture. Karenev, 281 S.W.3d at 434 (citing Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993)). This is so because statutes “are presumed to be constitutional unless it is determined otherwise,” and “[t]he State and the trial court should not be required to anticipate that a statute may later be held to be unconstitutional.” Id.

Contrast that with Smith.³ In Smith, we allowed a defendant to raise a facial constitutionality challenge for the first time on appeal despite the lack of a trial court objection because the statute at issue had already been declared facially unconstitutional. Id. at 894–97. We distinguished Karenev, reasoning that Smith was “seeking relief for a conviction of a non-crime under a statute that has already been held to be invalid,” unlike in Karenev where Karenev was challenging the constitutionality of a statute that had not yet been declared void. Id. at 896.

Appellant argues that Karenev does not apply and points to our decision in Ex parte McCain, 67 S.W.3d 204 (Tex. Crim. App. 2002), where we defined a “void” conviction as one “in which the trial court lacked jurisdiction over the person or subject matter or in which the trial judge lacked qualification to act in any manner.” Appellant's Post-Submission Response at 16 (quoting McCain, 67 S.W.3d at 209) (emphasis added). But McCain and the other cases Appellant cites, see, e.g., Ex parte Miller, 696 S.W.2d 908 (Tex. Crim. App. 1985), are inapposite. McCain did not deal with a judge's qualifications, and in the other cases relied upon by Appellant, the judge was constitutionally disqualified from presiding over the defendant's case. See Miller, 696 S.W.2d at 910 (“It is a denial of a person's right to judicial impartiality to allow the state's attorney to later become judge in the same case. And such conduct is directly prohibited by the Constitution and statutes of this State.”). Furthermore, to the extent that Appellant relies on Miller, that case was overruled in Ex parte Richardson, 201 S.W.3d 712 (Tex. Crim. App. 2006). Appellant also cites Davis v. State, 956 S.W.2d 555 (Tex. Crim. App. 1997), for the proposition that “it is incorrect to suggest that the authority of the judge presiding over the case has no bearing on the validity of the proceedings.” Appellant's Post-Submission Response at 16 (quoting Davis, 956 S.W.2d at 558). But this Court in Davis rejected precisely the same argument that Appellant attempts to make in this case. We held:

[T]he magistrate is not subject to the same constitutional qualifications as the [elected district] judge. Therefore, if the district judge has authority over the case, the magistrate is qualified to be a magistrate, and he performs an act authorized under [the Government Code], his acts are not void.

Davis, 956 S.W.2d at 560 (internal footnote omitted). In this case, Appellant does not challenge either (1) the district judge's authority over the case or (2) the associate judge's qualifications to be an associate judge, nor does Appellant contend that the associate judge performed an act unauthorized under the Government Code. Appellant simply challenges the constitutionality of two statutes for the first time on appeal and attempts to backdoor his challenges as “void judgment” claims in order to sidestep Karenev. We reject Appellant's attempts to do so.

Sections 54A.006 and 54A.008 of the Texas Government Code have not been declared unconstitutional. Consequently, we must presume their constitutionality. Karenev, 281 S.W.3d at 434. To preserve his facial constitutionality challenges, Appellant was required to present his objection to the trial court. Id. (citing Marin, 851 S.W.2d at 279–80). Appellant did not do so. Applying the preservation principles in Karenev, we hold that Appellant did not preserve his complaint for appellate review.⁴ Id.

III. Conclusion

We conclude that Appellant did not preserve his complaint for appellate review. Consequently, we affirm the judgment of the court of appeals.

FOOTNOTES

1.   Batson v. Kentucky, 476 U.S. 79 (1986).

2.   Appellant's petition for discretionary review presents the following question for review:Article V, Section 7 of the Texas Constitution gives district judges “judicial power” to hear and determine felony cases. Associate judges have no “judicial power.” Nevertheless, the Legislature has authorized associate judges in Harris County to conduct voir dire and determine the makeup of a jury. Is the selection of a jury an ultimate judicial determination that only a district judge can make?

3.   Smith v. State, 463 S.W.3d 890 (Tex. Crim. App. 2015).

4.   Three observations about the dissenting opinion are apropos. First, just because the error in this case might be structural does not mean that it falls within Marin category one or category two. Cf. post at 39 (Schenck, P.J., dissenting) (referencing Marin v. State, 851 S.W.2d 265 (Tex. Crim. App. 1993)). One such example is Batson error, which the Supreme Court of the United States has already determined is not amenable to a harm analysis because Batson error “undermines the structural integrity of the criminal tribunal itself.” Vasquez v. Hillery, 474 U.S. 254, 264–65 (1986). Yet, Batson error is a Marin category three right. See Batiste v. State, 888 S.W.2d 9, 16 n.5 (Tex. Crim. App. 1994). Second, the dissenting opinion's embrace of a statute's presumption of constitutionality is somewhat ironic. Post at 4 (Schenck, P.J., dissenting). If indeed the dissenting opinion embraces this well-established part of our jurisprudence, then the dissenting opinion cannot ignore what immediately follows: “Statutes are presumed to be constitutional, and that presumption means that a constitutional claim against a statute—even a facial claim—must be preserved at trial.” Wood v. State, 693 S.W.3d 308, 324 (Tex. Crim. App. 2024) (first citing Karenev, 281 S.W.3d at 434; then citing Beck, 541 S.W.3d at 852–53) (emphasis added). Third, the dissenting opinion suggests that “Karenev should be disavowed.” Post at 32 (Schenck, P.J., dissenting). Another Judge on this Court has previously questioned Karenev. See, e.g., Beck, 541 S.W.3d at 861 (Yeary, J., concurring); Smith, 463 S.W.3d at 899 n.3 (Yeary, J., concurring). Neither party suggests that we should overrule Karenev. The State wants us to faithfully apply it. Appellant posits that it is distinguishable. Its faithful application in this case resolves the preservation question before us.