UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 95-10057 Summary Calendar

MARK ANTHONY WINSTON,

Plaintiff-Appellant,

VERSUS

LARRY W. BARAKA,

Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Texas (3:94-CV-2629-H) (April 7, 1995)

Before JONES, BARKSDALE and BENAVIDES, CIRCUIT JUDGES.

PER CURIAM:*

Appellant, Mark Anthony Winston ("Winston"), a Texas state

prisoner, appeals the dismissal of his civil rights suit. The

district court dismissed his complaint with prejudice pursuant to

(d) because it found that the complaint lacked an

arguable basis in law or in fact. Because Winston's claim is based

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. on an indisputably meritless legal theory, we affirm.

In the district court, Winston alleged that, although a jury

found him guilty of aggravated robbery, the trial judge, Judge Pat

McDowell, failed to make an affirmative finding that Winston used

and exhibited a deadly weapon. Defendant/Appellee, Larry W. Baraka

("Judge Baraka"), however, sitting for Judge McDowell, signed the

judgment and entered such a finding, even though no affirmative

finding had been made by Judge McDowell. Thus, Winston alleged,

Judge Baraka "entered a finding antagonistic to the punishment

verdict and the docket sheet." Winston requested monetary damages

for the alleged constitutional violation.

Texas law provides that a district court judge may hear and

determine a matter pending in any district court and authorizes

such district judge to sign a judgment or order in any such court.

Texas Government Code Ann. § 74.094(a) (West 1988). The judgment

or order is valid and binding as if the case were pending in the

court of the judge who acts in the matter. Id. Accordingly, there

was no clear absence of jurisdiction in Judge Baraka's signing of

the judgment containing the use of a deadly weapon finding. Thus,

even if Judge Baraka's complained of action was in error, done

maliciously or was in excess of authority, he would not be deprived

of his judicial immunity. Stump v. Sparkman,

(1978). Because Judge Baraka is entitled to judicial immunity,

Winston's claim is based upon an indisputably meritless legal

theory. The district court properly dismissed the complaint with

-2- prejudice.

AFFIRMED.

-3-