## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- 

## EDINBURG

NUMBER 1 3 - 09 - 00 286 - C R NUMBER 13 - 09 - 00288 - CR
ALVIN MELVIN MERCER JR. A ppellant,

v. THE STA TE OF TEXAS , Appellee.

On appeal from the County Court of Matagorda County, Texas.

NUMBER 13 - 09 - 00430 - CR
ALVIN MELVIN MERCER JR. Appellant,

v. THE STATE OF TEXAS, Appellee.2 

### On appeal from the 130th District Court of Matagorda County, Texas.


## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez, and Benavides

Memorandum Opinion by Justice Benavides In these three consolidated ap peals, Appellant , Alvin Melvin Mercer, Jr. , contends
that the trial court erred by: (1) accepting a guilty plea when a motion to recuse was pending; (2) not granting defense counsel‘s motion to withdraw; and (3) conducting a recusal hearing on a separate motion to recuse in appellant‘s absence. We affirm.
I. B ACKGROUND Mercer had three cases pending in Matagorda County in November 2008. The first case, trial court cause number 2008

- 0856 (appellate cause number
13

- 09

- 0286

- CR) , was for family

- violence ass ault, a c lass A misdemeanor. See T EX

. P ENAL C ODE A NN . § 22.01(b) ( West Supp. 2010). The second case, trial court cause number 2008

- 0039 (appellate cause number 13

- 09

- 0288

- CR) was for violating a protective order, another c lass A misdemeanor. See id . § 2 5.07 ( West Supp. 2010). The third case, trial court cause number 08

- 376

- SJ (appellate cause number
13

- 09

- 0430

- CR) was for tampering with a witness, a state

- jail felony. See id . § 36.05 ( West 2003). The record indicates that Mercer made a deal with t he S tate to enter guilty pleas i n all three cases in exchange for a 180

- day sentence in county jail.
A. Procedural History in Family - Violence Assault and Protective Order Cases Mercer‘s plea hearing was scheduled for November 6, 2008 on the calendar of his fa mily

- violence assault case. On that same day, Mercer allege s that he filed a motion3

to recuse in the protective order case. The motion argued that Judge Nate McDonald should be recused on the ground that he is not an attorney and , thus , should not be
all owed to adjudicate criminal matters. 1 However, the docket sheet in the protective
order case does not reflect that a motion to recuse was ever filed on this date. Further, despite having allegedly filed this motion, Mercer fully participated at the plea hearing in the family

- violence assault case and failed to inform Judge McDonald about his recusal motion in the protective order case. Judge McDonald accepted Mercer's guilty pleas for all three cases and ordered a sentencing hearing for January 16, 2009. At the January 16, 2009 hearing, Mercer brought the motion to recuse to Judge McDonald‘s attention for the first time with a motion to vacate his guilty pleas. At that time, Judge McDonal d referred the motion to vacate and the underlying motion to

recu se to the Honorable Olen Underwood, Presiding Judge of the Second Administrative Judicial District of Texas. Judge Underwood assigned Judge Brady G. Elliott to hear these matters, and the motions were set for hearing. Prior to the hearing before Judge Ell iott, additional motions were filed. First, Mercer‘s attorney, Frederick B. Cull, filed a motion to withdraw as counsel because he did not want to advocate the motion to recuse. In response, Mercer filed a pro se

1 The Texas Constitution sets forth the eligibility r equirements for a county judge: There shall be established in each county in this State a County Court, w hich shall be a court of record; and there shall be elected in each county, by the qualified voters, a County Judge, who shall be well informed in the law of the State; shall be a conservator of the peace, and shall hold his office for four years, and unti l his successor shall be elected and qualified. He shall receive as compensation for his services such fees and perquisites as may be prescribed by law.
T EX

. C ONST . art. 5, § 15. Although the constitution requires a county judge to ―be well informed in t he law of the State,‖ there is no requirement that the judge be a licensed attorney. Mercer, however, appeared to challenge the constitutionality of a non

- attorney to adjudicate him in a criminal matter.4

motion to withdraw the motion to recuse o n the basis that he would not have an attorney to argue the motion. When Judge Elliott finally heard all of the motions at a hearing on March 27, 2009, he denied the motion to vacate, motion to recuse, and motion to
withdraw. Although Mercer‘s guilty plea s were the product of a plea bargain, the trial court granted him permission to appeal. See T EX

. R. A PP

. P . 25.2(a)(2)(b). Accordingly, Mercer appealed two issues from these cases: he asserted that the trial court erred when it accepted his guilty plea when a motion to recuse was pending (issue one) and when it denied his counsel‘s motion to withdraw (issue two).
B. Procedural History in Witness Tampering Case Mercer filed similar motions in his witness tampering case. On January 16, 2009, Mercer filed a ―Motion to Vaca te Plea, Recuse, and Disqualify ‖ but against a different judge and for a different reason. In this motion, Mercer attempted to withdraw his guilty plea by alleging the following: [Local attorney] William Pendergraft exercised an illegal scheme with the Matagorda County authorities to induce the Defendant [Mercer] to plead guilty to obtain a favorable result for himself and his client, serial ―victim‖ Tiffany Leca in a lawsuit that had been filed and later served in the courtroom after th e Matagorda County officials witnessed Mercer enter his plea. 2 Mercer argued that he would not have pleaded guilty to his crimes on November 8, 2008 before Judge McDonald if he had known about Pendergraft‘s alleged scheme and subsequent lawsuit against him. Upon learning about this alleged conspiracy, Mercer file d a civil rights lawsuit under t itle 42 , section 1983 of the United States Code

2 This lawsuit, styled Tiff any D. Van Dyke v. Alvi n Mercer Jr., was filed in the 23 rd Judicial District of Matagorda County, Texas under trial court cause number of 08

- H

- 0628

- C.5

against attorney Pendergraft, Pendergraft‘s client Leca, and Matagorda County. See 42 U.S.C.A. § 1983 (1996) (pro viding a federal civil cause of action for the deprivation of civil rights). Consequently, Mercer‘s motion to recuse in this case argued that, because Matagorda County was a party to his civil rights lawsuit, the court should assign a visiting judge to av oid the ―appearance of impropriety . . . especially at the expense of an honorable and independent judiciary.‖ Judge Craig Estlinbaum declined to recuse himself and referred the case to the Second Administrative Judicial Region. Judge Underwood, Presiding Judge of the Second Administrative Judicial District, held a hearing on the motion to recuse. Mercer did not appear at the hearing. At the hearing, the following colloquy occurred: JUDGE UNDERWOOD: Where is your client today, Counsel? ATTORNEY CULL: He is not present, your Honor. JUDGE UNDERWOOD: I know he‘s not present. ATTORNEY CULL: I‘m not sure where he is today, your Honor. I imagine he‘s at work. JUDGE UNDERWOOD: It‘s a voluntary absence. It‘s not an absence that the court can control; is tha t correct? ATTORNEY CULL: That would be my understanding, your Honor. JUDGE UNDERWOOD: All right. Very well. . . . Judge Underwood denied the motion to recuse and transferred the case back to the trial court. The trial court granted Mercer limited per mission to appeal, see T EX

. R.
A PP

. P . 25.2(a)(2)(b), by issuing the following order on November 5, 2009: I, CRAIG ESTLINBAUM, Judge Presiding, certify this criminal case is a plea bargain case, and the Defendant has NO right of appeal, provided,6

however, that the Defendant does have the right to appeal the order on the motion to recuse entered after the guilty plea was accepted and the trial court found the Defendant guilty of the charged offense because that order does not attack the propriety of the defe ndant‘s conviction. Accordingly, although Mercer appealed two issues from this cause number, we only address the issue regarding Mercer‘s absence from the hearing on the motion to recuse (issue three). We dismiss Mercer ̳s fourth issue, which was whether the trial court erred by denying his motion for new trial, because the trial court specifically limited his ability to appeal per the above order

. See T EX

. R. A PP

. P . 25.2(a)(2)(b) (―In a plea bargain case

— that is, a case in which a defendant‘s plea was g uilty . . . a defendant may appeal only after getting the trial court‘s permission to appeal.‖).
II. A NALYSIS A. Issue One: The Motion to Recuse Judge McDonald By his first issue, Mercer argues that the trial court erred when it accep ted his guilty pleas when a motion to recuse Judge McDonald was on file. Mercer sought to recuse Judge McDonald from adjudicating his cases on the ground that Judge
McDonald is not an attorney. Motions to recuse are governed by Rule 18a of the Texas Rul es of Civil
Procedure. The rule, in relevant part, provides as follows: (a) At least ten days before the date set for trial or other hearing in any court other than the Supreme Court, the Court of Criminal Appeals or the court of appeals, any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case. The grounds may include any disability of the judge to sit in the case. The motion shall be verified and must state with particularity the grounds why the judge before whom the case is pending should not sit. The motion shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence provided that facts may be stated upon information and belief if the grounds of such belief are specifically7 stated. (b) On the day the motion is filed, copies shall be served on all other parties or their counsel of record, together with a notice that movant expects the motion to be presented to the judg e three days after the filing of such motion unless otherwise ordered by the judge. Any other party may file with the clerk an opposing or concurring statement at any time before the motion is heard. (c) Prior to any further proceedings in the case, th e judge shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion. If the judge recuses himself, he shall enter an order of recusal and request the presiding judge of the admin istrative judicial district to assign another judge to sit, and shall make no further orders and shall take not further action in the case except for good cause stated in the order in which such action is taken.
T EX

. R. C IV

. P. 18a (a)

– (c).
Mercer's motion to recuse Judge McDonald is problematic for several

reasons. First, none of the docket sheets for Mercer's three underlying cases indicate when the motion to recuse was actually filed. By his counsel's own admission, though, Mercer apparently filed the motion to recuse on November 6, 2008 , in the protective
order case

— the same day that he pleaded guilty to all three cases in the family

- violence
assault case setting

. This date is corroborated by a file

- stamped copy of the motion, which apparently first a ppeared at the January 16, 2009 sentencing hearing. Assuming without deciding that Mercer's motion was properly filed on November 6, 2008, we note
that the ma ndatory referral provisions of r ule 18a are not triggered if a recusal motion is procedurally def ective. DeBlanc v. State , 799 S.W.2d 701, 706 (Tex. Crim. App. 1990); Vargas v. State , 883 S.W.2d 256, 259 (Tex. App.

– Corpus Christi 1994, pet. ref'd). The rule provides that motions to recuse must be on file at least ten days before a hearing. T EX

. R. C IV

. P . 18a(a). Mercer's motion was not. The rule also provides that8

Mercer should have served copies of this motion to the State with a notice of hearing on the motion. Based on the record before us, Mercer did not comply with th is requirement
either. 3 In short, "[a]ppellant failed to comply with Rule 18a and as such he will not be heard to complain on appeal of the denial of an opportunity to have his motion heard by a judge other than the one assigned to his case." DeBlanc , 799 S.W.2d at 706. Second , we note that the trial court is not required to consider a motion unless it is called to its attention. See In re Smith , 263 S.W.3d 93, 96 (Tex. App.

– Houston [1st Dist.] 2006, orig. proceeding); Risner v. McDonald's Corp ., 18 S.W.3d 903, 909 (Tex. App.

– Beaumont 2000, pet. denied); Metzger v. Sebek , 892 S.W.2d 20, 49 (Tex. App.

– Houston [1st. Dist.] 1994, writ denied). During the hearing where Mercer pleaded guilty to all three of his underlying cases, Mercer made no mention of the motion to

recuse. In a ddition, there is no documentation indicating that Judge McDonald knew about the motion to recuse when he accepted Mercer's guilty pleas on November 6,
2008. We cannot fault a judge for failing to consider a motion when it was not brought to the court‘s a ttention. See In re Smith , 263 S.W.3d at 96. For all of these reasons, we overrule Mercer's first issue.
B. Issue Two: The Motion to Withdraw as Counsel By his second issue, Mercer argues that the trial court erred when it denied his defense attorney‘s motion to withdraw as counsel on March 27, 2009. Mercer's attorney, Cull, filed a motion to withdraw as counsel on March 11, 2009 , because he did not want to prosecute Mercer's motio n to recuse Judge McDonald

. Mercer contends he

3 At the hearing on the motion to recuse, the Matagorda County prosecutor indicated that he ― kn ew enough that if [the motion t o recuse] had been filed that we would not proceed. ‖ He went on to testify that Judge McDonald was not aware of the motion either: ― I would think that the Judge would have had the same understanding that I had, that . . . if we had known that it would ha ve been filed, we would not have proceeded.‖9

―was f orced to accept the representation of a lawyer who did n ot want to represent him. ‖ Mercer claims that the denial of the motion to withdraw ―runs afoul of the Sixth Amendment‘s right to counsel‖ because Cull did not ―effectively and zealously‖ represent
hi m and pursue a motion he wanted urged before the court. Texas Rule of Civil Procedure 10 provides that, ―[a]n attorney may withdraw from representing a party only upon written motion for good cause shown.‖ T EX

. R. C IV

. P. 10. ―When a trial court all ows an attorney to voluntarily withdraw, it must give the party time to secure new counsel and time for the new counsel to investigate the case and prepare for trial.‖ Villegas v. Carter , 711 S.W.2d 624, 626 (Tex. 1986) (citing Lowe v. City of Arlington , 453 S.W.2d 379, 382 (Tex. Civ. App.

– Fort Worth 1970, writ ref‘d n.r.e.)). In addition, before a trial court allows an attorney to withdraw, it should see that the attorney has complied with the attorney professional code of conduct. Moss v.
Malone , 880 S .W.2d 45, 51 (Tex. App.

– Tyler 1994, writ denied). The Texas Disciplinary Rule of Professional Conduct 1.15 provides as follows: Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client[ ̳]s inte rests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. . . .
T EX

. D ISC IPLI NARY R. P ROF ‘ L C ONDUCT 1.15. A trial court abuses its discretion when it grants a motion to withd raw which does not comply with r ule 10. Moss , 880 S.W.2d at
51. Most cases discussing motions to withdraw as counsel address a situation where the trial co urt grants the motion and leaves the client without representation. See Villegas , 711 S.W.2d at 624; Moss , 880 S.W.2d at 51. Here, however, Mercer10

complains because the court denied the motion and forced him to be represented by
counsel. 4 The court‘s de cision ensured that Mercer‘s legal interests were protected until he secured new legal counsel, and we hold that the trial court did not abuse its discretion in denying the motion to withdraw

. Moss , 880 S.W.2d at 51. We also note that, only a month and a half later, the trial court granted Mercer‘s motion to substitute counsel as soon as Mercer engaged a new attorney: an order dated April 14, 2009 reflects that attorney John Carroll Boudreaux was substituted as counsel of record for Cull. In light of th e foregoing, we overrule Mercer‘s second issue. C. Issue Three : Mercer’s Absence From the Hearing on Motion to Recuse By his third issue, Mercer argues that the trial court erred when it conducted the hearing on the motion to recuse in the witness tampe ring case when he was not present. Texas Code of Criminal Procedure article 33 provides criminal defendants with a statutory right to be present during their trials. See T EX

. C ODE C RIM

. P ROC

. A NN . art. 33.03 ( West 2010); Routier v. State , 112 S.W.3d 554, 575 (Tex. Crim. App. 2003). The statute, in relevant part, reads as follows: In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself

4 Mercer‘s briefing on issue two also makes vague and confusing references to United States Supreme Court cases Strickland v. Washington , which discusses ineffective assistance of counsel, and Anders v. Cali

fornia , which sets forth the procedure by which an appellate attorney can withdraw as counsel when the attorney finds there is no appellate error based on a review of the reco rd. Mercer did not raise ineffective assistance of counsel as a formal issue i n the brief. See T EX

. R. A PP

. P. 38.1(f) (providing that ―[t]he brief must state concisely all issues or points presented for review.‖). Furthermore, we note that Anders arguments are usually advanced by attorneys, not appellants themselves. Mercer‘s An ders arguments seem to contend that his counsel should not have been allowed to proceed if he no longer wished to pursue certain pre

- trial motions. In accordance with rule 38.1 of the Texas Rules of Appellate Procedure, we can only consider contentions th at are supported by clear and concise arguments with appropriate citations to authorities and to the record

. See id . at R. 38.1(i).11

after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proce ed to its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present durin g the whole trial. Provided, however, that the presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case. See T EX

. C ODE C RIM

. P ROC

. A NN . art. 33.03. We note that article 33 provides that defendant s ―must be personally present at the trial .‖ See T EX

. C ODE C RIM

. P ROC

. A NN . art. 33.03 (emphasis added). In Snyder v.
Massachusetts , the United States Supreme Court explained that there is a due process right for a defendant to be present at his trial ―w henever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.‖ 291 U.S. 97, 107 (1934), overruled on other grounds by Malloy v. Hogan , 378 U.S. 1 (1964); see U.S. C ONST . amend. XI (outl ining the ―confrontation clause ‖). The ―presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.‖ Snyder , 291 U.S.
at 105

- 06, 108. The Snyder Court also held th at due process does not require the defendant‘s presence ―when [his] presence would be useless, or the benefit but a shadow.‖ Id

. at 106

- 07. The cases Mercer relies upon stand for the proposition that a defendant is entitled to be present to defend agai nst the charge he faces. See Snyder , 291 U.S. at 107; People v. Dokes , 595 N.E.2d 836, 838 ( N.Y. 1992). Here, however, Mercer did not have to defend himself because he had already pleaded guilty to the crime. Mercer cites no authority, and we find none, that supports the notion that a defendant must be present at a post

- trial hearing after he voluntarily pleaded guilty to an offense. The12

hearing on this motion to recuse did not have a ―reasonably substantial‖ relationship to his ability to guard against the charge of witness tampering. The hearing, instead, was based on Mercer‘s motion that the court should assign a visiting judge to avoid the ―appearance of impropriety‖ given that Mercer had sued Matagorda County in an unrelated civil rights lawsuit. Mercer‘s presence thus would have been ―useless‖ to the opportunity to defend himself against the charge of witness tampering. See Snyder , 291 U.S. at 106

- 07. Further, we note that Mercer‘s attorney effectively waived his right to be present.
Prior to t he hearing, Judge Underwood stated he believed Mercer‘s absence to be a voluntary absence. Mercer‘s counsel replied, ―That would be my understanding, your Honor.‖ Mercer failed to show that a fair and just hearing was thwarted by his absence, especially since his attorney was present. Id . at 105

- 06; see Routier , 112 S.W.3d at 577. Although Mercer is correct in contending that an attorney cannot waive a defendant‘s presence at trial, see Proffitt v. Wainwright , 706 F.2d 311, 312 (11th Circ. 1983), we aga in note that the hearing on the motion to recuse was not a trial. Finally, even if we were to assume that the trial court erred by continuing the hearing in Mercer‘s absence, and that Mercer‘s absence was involuntary, he could not prevail under either th e constitutional or the non

- constitutional error standard. See
Routier , 112 S.W.3d at 577 (citing T EX

. R. A PP

. P . 44.2(a)

- (b). ―An appellant is harmed by a constitutional error unless after reviewing the record, the reviewing court determines beyond a re asonable doubt that the error did not contribute to the conviction or punishment.‖ Id

.; see T EX

. R. A PP

. P . 44.2; see also Mares v. State , 571 S.W.2d 303, 305 (Tex. Crim. App. 1978) (―It is not everything that takes place in the absence of a13

defendant upo n trial for which a reversal should be ordered. There must be an actual showing of injury or a showing of facts from which injury might reasonably be inferred

. ‖). Here, again, the alleged error did not ―contribute to the conviction or punishment‖ of
Mer cer because he had already pleaded guilty. Accordingly, we overrule this issue.
III. C ONCLUSION Because we have overruled all of Mercer‘s issues on appeal, we affirm the judgments of the trial court.

________________________ GINA M. BENAVIDES, Justi ce
Do not p ublish. T EX

. R. A PP

. P.47.2( b )

. Delivered and filed the 27th day of May , 2011.