NO. 07-04-0374-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JANUARY

5, 2006

______________________________ MONTY SCOTT PHIPPS, APPELL ANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 2 42ND DIST RICT COURT OF HALE COU NTY; NO. A14271-0112; H ONORABLE ED SELF, JUDGE

_______________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ. MEMORA NDUM OPIN ION Pursua nt to a pl ea barga in for b urglary ofa buildin g, appellant Monty Sco tt Phipps was granted deferred adjudica tion and placed on comm unity supervision for five years. Followi ng a hearing on the State’s motion to proceed wi th an adjudicati on of guilt and pl eas of true to three of five alleg ations, the court found appellant had v iolated condit ions of1 Appellant presents five issues in the table of co nten ts a nd bo dy of the bri ef; however, he only pr

esents four iss ues in the “is sues presented”portion of the brief and the State only responds to fou r issues. W e will address all five issues. 2 community

superv ision, adjudicated him guilty, and assessed pu nishment at two years confinementand a $1,000 fine . Pres enti ng fi ve issues, 1 appellant que stions w hether (1) th e trial court erre d in failing to refer a motion to recuse toanother judg e for considerat ion; (2) the trial cour

t erred in failing to consider or rule on his motion torecuse; (3) his rig ht to due process was violated where the court had a bias against him b ased on a prior incident w ith his father whic h affected sentencing; (4) the cour t erred in r

efusing to consid er all the evidence before sentencing where the court refused to contact the community super vision officer to obtain his opi nion on appellant’ s progres s; and (5) thetrial cour t erred in not setting a hearing on a motion for new trial that was accompa nied by affid avit s which established reasonable g rounds to beli eve the all eg ati o n s i n t h e m o t i o n w e r e t r u e . We affirm. Appellant

was gr anted deferred adjudication in 2001, and in 2002, an agreed order was enter

ed appr ovin g the transfer of hi s commun ity superv ision from Hale C ounty to McLenn an County. I n November 200 3, appellant w as arrested i n McLennan County for driving while i ntoxicated. After the Hale C ounty Community Supervision Office was notifie d of the arrest, theState filed a motio n to proceed w ith an adjudication of guilt

. Atthe hearing on the motion to adj udicate, a ppellant pled true to some of the allegations

raised by

the State and ev idence waspresented on other allegatio ns to which3

he pled not true. Two McLennan Cou nty Office rs testified ab out the new arrest and a ppellant’s Hale County Community Supe rvisi on Officer testified in support of ot he r allegations

presented by

the State. After the State r ested, defense counsel inv ited the tria l courtto telephone Mike McPhee, appell ant’s community supervis ion officer in M cLennan Coun ty, who was unavail able for the proce eding, a nd visit with him regarding appellant’s progress for t he prior

yea r an d a ha lf. The court responded, “all right,” and asked def ense counsel to call it

s first w itness. Appellant was the only witness for the defense and admitted violatin g certain conditions of communi ty superv ision. Based on the eviden ce and pleas of true, thecourt adjudi cated appellant g uilty and proceeded to the sentencing phase. The State reu rged its evi dence from the adjudication portion of the trial and, when defense cou nsel was asked if he had any punishment evidence to present, the foll owing occurred: [Defense counsel]: I think that I’ve pre tt y much arg ued that. The only other thing that I would ask the Court is if he would just cons ider, be fore m aking a ruling on punishment, a conversation w ith Mr. M cPhee. Court: I can’t do that

at this time, counsel. It’s t en m inut es un til si x. I ha ve a feeling Mr. McPhee wo uld not be ava ilable even if I tried. Both parties then rested on punishm ent and the court asked appellant if he had any l egal reason why s entence should not be pronounced. Appellant responded, “[n]o,” and the court remanded him into custody and set an appeal b ond. The proceeding s concluded w ithout appellant lodg ing any objections.4

App ellant

filed a motion for new trial suppor

ted by affidavi ts. Among ot he r allegations, he sugges ted error by the trial court in refus ing to co nduct a separate punishment

hearing to present mitigating evidence and due proce ss violations based in part on the trial court’s bias against him due to a prio r re lationship bet ween the trial court and his father. We will address appella nt’s is sues in a log ical rather than sequenti al order. By issues three and four, appellant maintains his right todue process w as violated where the cou rthad a b ias agains t him based on a prior inciden t with hi s father whi ch affected senten cing, and the court erred in refusing to consider all the evidence before sentencing where the court refused to conta ctthe McLennan Cou nty Community Supe rvisi on Officer to obtain his op inion on appell ant’s progr ess. We disagree. After an adjudicati on of guilt, the trial court must gi ve a defendant an oppor tunity to present evidence i n mitigatio n of punishment. Issa v. State, 826 S.W.2d 159, 161 (Tex.Cr.A pp. 1992). When t he trial cour t asked the defense i f it had any puni shment evidence to present, couns el urged the trial cour t to telephone Mc Phee. When the tr ia l court de clined to do s o, appellant did not object. F urthermore, w hen asked by t h e tria l court, he gav

e no reason w hy sentence s hould not be pronounced. Althou gh article 42. 12, section 5( b) of the Texas C ode of Criminal Procedure permi ts an appeal from assessment of pun ishment after an ad judication of guilt, it is still necessary to preserve the complaint for appellate rev iew. See Tex. R. App. P. 33.1(a)( 1)(A). See also2 Althou gh appellant filed a “motio n to disqualify,” the substance ofthe document is

a request for r

ecusal based on bi as. Cf . Tex. Code C rim. Proc. A nn . art. 30. 01 (Vernon Supp. 2005). 5 Hardeman v. Stat e, 1 S.W .3d 689, 690 (Tex.Cr.App. 19 99). By issues three and four, appellant

raises error in thep unishment phase of the proceedings. The record demonstrateshe was g iven an oppor tunity to pr

esentpunishment evidence, and that is all thatis requi red. See Pearson v. State, 994 S.W.2d 176, 179 (Tex.Cr.App. 1999 ) (en banc). Appellant’s failure to object to the trial court’s refusal to contact Mc Phee in McLennan County waives his

complaint for appel late revi ew. Issue s three and four ar e overrul ed. Byh is first and second issues, appe llant contends the trial court erred in f ail ing t o refer a motion to recus e to another judg e for consideration and in failing to consid er or rule on the motion to rec use. 2 We disagree. Recusals in criminal cases are governed by Rule 18a of the Texas Rul es of Civi l Procedure. See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Cr.A pp. 2004). See also Arnold v. State, 85 3 S.W.2d 543, 544 (Tex.Cr.App. 1 993) (en banc). Rule 18a(a) provides that at least ten days prior t o a trial dat e or other hearing, a party may

file a motion stat ing the gr ound why a judge shoul d not sit on a case. The crimi nal la w has d evelo ped to al low a criminal trial judg e to make an init ial determina tion on whether the motion confo rms with the mandatory requirements of Rule 18a. Arnold , 853 S.W.2d at 544-45. A trial judge’s obl igation to r ecuse or refer the motion does notcome into play until a formal, timely w ritten and verified motion i s filed. Spig ener v. Wallis, 80 S.W.3d 174, 180 (Tex.App.–Waco 2002, no pet.).6

The hearing o n the State ’s motion to adj udicate was held on April 19, 2004, and appellant

file d his recu sal m otio n on M ay 1 9, 2004, the same date he filed his motion for new trial. H e alleged the trial judg e could not objec tively rule on his motion for new tria l. The motion to r

ecu se was sup ported by an affidavit from appell ant’s father prov iding reasons for p oten tial bia s by the t ria l ju dge . Ac cor

ding to t he affi dav it, appellant’ s father was terminated in 1993, when the trial judge was in pri v ate practice and represented appellant’s father’s employer. As a result of the terminatio n, leg al proceeding s followed. During a hearing in 1994, appellant’s f ather observed Judge Self prying into the fat her’ s brief case and confronted him about it. Harsh words wer e exchanged and appellant’s father told Judge Self “he would regret the day he ever messed with [his] fam ily.” Appe llant’s fa ther also averred that he ex pressed concern about Judge Sel f to appellan t’s attorneys p rior to the adjudication hea ring, but astrategi c decision w as made notto file a motion to recus e out of fear it would aggr avate any bias. He concluded that in hindsight t he motion to recus e caused Judge Self to impose the max imum sentence. Appellant

concedes th at tim eliness of his motion to recuse is at issue. However, relying on George v . State, 20 S.W.3d 130 (Tex.App.–Houston [14th Dist.] 2000, pet. ref ’d), he argues his

motion was timely beca use it was directed at ahearing on the motion for new trial. The State urges

that the motion to recuse should have b een filed at le ast t en da ys prior to the adjudication hearing and that failure to do so waived any complai nt of the denial7

of an opportunity

to have the moti on heard by ano ther judge. See Arnold , 853 S.W.2d at 544-45. See also DeBla nc v. State, 799 S.W.2d 701, 705 (Tex.C r.App. 1990)(en banc). In George , the defendant urged on appeal that the trial judge err ed in presidi ng over th e mot ion for new t rial heari ng because the j udge’s conduc t during trial was the central issue to be decided. Id . at 136. No motion to recuse , howev er, was fil ed. The court of appeals suggested thata motion to rec use directed at the motion for new trial hearing could have attempted to foreclos e the possibil ity of having a biased judg e rule on the moti on for new trial

. Id . 138-39. George , however , is disti nguishable. The judge w ho presided over a jury trial left to att end a judicial conference before the j ury returned a verdi ct. Another j udge was aske d to rece ive the verdi ct. After the j ury indi cated it was deadlocked, t he judge inst ructed them to continue deliberating . Meanwhi le, a plea ag reement was being negoti ated. Allegati ons were made that during plea discuss ions wit h the judge, the judge thr eatened, intimidated, and coerced a g uilty pl ea from defendan t. The grounds for pos sible recus al were n ot known until after trial. See generally Martin v. State, 876 S.W .2d 396, 397 (Tex.App. –Fort Worth 1994, no pet.) (noting that the ten-d ay requir ement is not absol ute and does not contemplate a situation i n which a party cannot know the g rounds for recus al until after the motion would no l onger be timely) . In the underl ying case, the alleg ed reasons for r ecusal were known more t h a n t e n d a y s p r i o r t o t h e h e a r i n g o n t h e m o t i o n t o a d j u d i c a t e . We decline to ap ply Georgeto the facts pres ented here. We conclude Judge S elf’s inaction on8

the motion was not error. See Bruno v. S tate, 916 S.W.2d 4, 8 (Te x.App.–Houston [1st Dist.] 1995, n o pet.). Iss ues one and two are overruled. By his final issue, appellant cont ends the trial court erred in not sett ing a hearing on his motion for new trial that w as accompanied by

af fidavit s that established reasona ble groundsto believe the allegations in the motion were true. W e disagree. A defendan t is entitled to a hearin g on a motion for new trial if the motion and accompanying affidav its raise matters not determinable from the record upon which thedefendant could be enti tled to relief. W allace v. State, 106 S.W .3d 103, 108 (Tex.Cr.App. 20 03) (en banc). Addi tion ally, the defendant must pres ent the motion to thetrial cour t. Rozell v. State, 17 6 S.W.3d 228, __ (Tex.Cr.App. 2005)

. The record demonstrates the m otion was timelypresented t o the trial court. See Tex. R. App. P. 21.6. By his motion for new

trial and accompanying affidavits, appel lan t pres ente d thefoll owi ng g roun ds fo r re lie f:

C he was sentenced without being giv en an o pportunity to present punishment evi dence;

C the trial court erred in refusing to co ntact h is community supervis ion off icer i n McL enn an Co unty;

C the court err ed i n refusing to a llow hi m to present ev idence on the prosecutor’s

recommendation;

C the judgment and s entence wer e contrary

to law; a nd

C his due process rights were violated because the trial cour t’s decisi on was based in part on a prior relationship with his father.9

As previous ly disc ussed, appellant was gi ven an opportunity to present

evidence in mitigation of punishment and failed to object when the trial cour t imposed sentence, thereby waivi ng any complai nt regardi ng sentencing . Additionall y, the judgment and sentence were notcontrary

to law. Article 42. 12, sectio n 5(b) of the Code of Criminal Pr ocedure denies a defendant th e right to appeal a trial court’s decision toadjudicate guilt. Finally, appellant’s argument

thatt he trial judge’s bias violated his due process rights was disposed of in his issues complaining of the trial court’s refusal to recuse or refer the motion to r e c u s e . We conclude there wer

e n o issues rai sed in the motion for new tri al that wer e not already determinable from the record. Iss ue five is ov erruled. Accordingl y, the tri al court’s judgment is affirmed. Don H. Reavis Justice Do not publish

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