Appeal from the 179th District Court Harris County, Texas
Trial Court Cause No. 1391357
consists of Justices Jamison, Donovan, and Jewell.
Hill Jamison, Justice
Ryan Jusup Simon appeals his conviction for capital murder.
After a jury found appellant guilty, the trial court
sentenced him to life in prison without the possibility of
parole. In a single issue, appellant complains that the
record does not reflect that the senior district judge
sitting by assignment took the required oaths of office.
Because we presume the regularity of such assignments and the
record does not reflect that the trial judge failed to take
the required oaths, we affirm.
parties are well acquainted with the facts of this case, and
they need not be recounted here for purposes of our analysis.
Senior District Judge Michael Wilkinson, sitting by
assignment, presided over appellant's trial. As indicated
above, appellant asserts that his conviction should be
reversed and remanded for a new trial because the record does
not reflect whether Judge Wilkinson took the required oaths
of office. See Tex. Const. art. XVI, § 1
(providing oaths of office for all elected and appointed
officers). Appellant did not raise this issue at trial;
however, a challenge to a trial judge's qualifications
may be raised for the first time on appeal. Wilson v.
State, 977 S.W.2d 379, 380 n.3 (Tex. Crim. App. 1998).
cites Prieto Bail Bonds v. State, for the
proposition that retired senior judges must take the oaths
required of appointed officers under the Texas Constitution.
994 S.W.2d 316, 320-21 (Tex. App.-El Paso 1999, pet.
ref'd); see also Eureste v. Comm'n for Lawyer
Discipline, 76 S.W.3d 184, 193-94 (Tex. App.-Houston
[14th Dist.] 2002, no pet.) (discussing Prieto).
However, even assuming the validity of this argument,
appellant cites no place in the record demonstrating that
Judge Wilkinson failed to take the oaths of office. An
appellate court generally indulges every presumption in favor
of the regularity of the trial court proceedings. See
Murphy v. State, 95 S.W.3d 317, 320 (Tex. App.-Houston
[1st Dist.] 2002, pet. ref'd) (citing McCloud v.
State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975)).
"The presumption of regularity is a judicial construct
that requires a reviewing court, 'absent evidence of
impropriety, ' to indulge every presumption in favor of
the regularity of the trial court's judgment."
Id. (quoting Light v. State, 15 S.W.3d 104,
107 (Tex. Crim. App. 2000)).
presumption applies to an appellate challenge to a senior
district judge based on the alleged failure to take the
constitutionally required oaths. See id. Therefore,
"an appellant who makes such a challenge must make a
prima facie showing that the trial judge did not take the
required oaths before we will consider the issue on the
merits." Id. As stated, appellant does not cite to
any proof in the record that Judge Wilkinson failed to take
the required oaths. Merely alleging a failure to take oaths
is not sufficient to overcome the presumption of regularity.
See id.; see also Smith v. State, No.
01-15-01055-CR, 2017 WL 929544, at *1 (Tex. App.-Houston [1st
Dist.] Mar. 9, 2017, no pet.) (mem. op., not designated for
argues that the presumption of regularity does not apply to
the lack of a visiting judge's oath of office, citing
Herrod v. State, 650 S.W.2d 814 (Tex. Crim. App.
1983). We agree with our sister court, however, that
Herrod does not apply when a retired district judge
sits in a district court, such as here. See Smith,
2017 WL 929544, at *1. The Court of Criminal Appeals
observed in Herrod that relevant statutes in effect
at the time required retired district judges to satisfy
special statutory requirements in order to sit as visiting
judges in county criminal courts in Dallas County. 650 S.W.2d
at 817-18 (outlining the requirements in the statute,
including execution of a bond). The Court specifically noted,
however, that the analysis would be different for retired
district judges sitting in district courts because
an eligible retired district judge is "still a district
judge." See id. at 817. (citing Article V,
§ 11 of the Texas Constitution: "District Judges
may exchange districts, or hold courts for each other when
they deem it expedient, and shall do so when required by
law."). Because the trial judge in this case was a
retired district judge sitting in a district court, this
different analysis recognized in Herrod applies
here, and thus its holding does not. See id.
no merit in appellant's contentions on appeal, we
overrule his sole issue and affirm the trial court's
 Several courts of appeals have
directly followed Murphy in unpublished opinions.
See, e.g., Smith v. State, No. 01-15-01055-CR, 2017
WL 929544, at *1-2 (Tex. App.-Houston [1st Dist.] March 9,
2017, no pet. h.) (mem. op., not designated for publication);
Barnes v. State, No. 03-13-00434-CR, 2016 WL
3917126, at *7 (Tex. App.-Austin July 13, 2016, pet.
ref'd) (mem. op., not designated for publication);
Bolivar v. State, No. 13-14-00157-CR, 2016 WL
4939384, at *23 (Tex. App.-Corpus Christi Sept. 15, 2016,
pet. ref'd) (mem. op., not designated for publication);
Simpson v. State, No. 05-02-01203-CR, 2004 WL
1232832, at *2-3 (Tex. App.- Dallas June 4, 2004, no pet.)
(not designated for publication); see also Williams v.
State, No. 07-15-00294-CR, 2016 WL 6024348, at *4 (Tex.
App.-Amarillo Oct. 13, 2016, no pet.) (mem. op., not
designated for ...