Opinion filed July 16, 2015

In The

Eleventh Court of Appeals 

__________

Nos. 11-13-00203-CR & 11-13-00204-CR

__________

ANTHONY AUSTIN METTS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause Nos. CR29169 & CR29170

M E M O R A N D U M O P I N I O N

Judge Robin Malone Darr found that Anthony Austin Metts had violated the 

terms of his community supervision for two deferred adjudications. In each case, 

Judge Darr revoked Appellant’s community supervision, adjudicated Appellant

guilty of sexual assault of a child, and sentenced Appellant to ten years’ confinement. 

We affirm.
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I. Background Facts and Evidence at Revocation Hearing

In both cases, Appellant pleaded guilty in 2004 to the second-degree felony 

of sexual assault of a child. The trial court deferred the adjudication of guilt and 

placed Appellant on community supervision for a period of ten years in each case.

As part of those proceedings, Judge Darr, who was an assistant district 

attorney at the time, represented the State at a hearing in which Appellant announced

his acceptance of the State’s offer of a plea bargain and waived his right to a trial by 

jury. The extent of Judge Darr’s involvement at the hearing consisted of a single 

sentence, “Let me give you a waiver to sign.” The entire hearing lasted 

approximately three minutes. In addition to this involvement, Judge Darr’s signature 

appears on the “WAIVER OF TRIAL BY JURY” form in both causes, and her 

initials appear on the criminal docket sheet for a “plea agreement — jury waiver” 

hearing in cause no. CR29169. In addition, Elizabeth Byer and Laura Nodolf

represented the State in all other proceedings in both cases.

The Midland County District Attorney moved to revoke Appellant’s 

community supervision in 2013. At the revocation hearing, Appellant answered 

“true” to two allegations and testified concerning several others.

II. Issues Presented

In each appeal, Appellant asserts the same two issues. First, Appellant argues 

that Judge Darr’s involvement in Appellant’s original proceedings disqualified her 

from presiding over the revocation hearing, making the judgments void. Second, 

Appellant contends that the trial court violated his right to due process when it 

assessed punishment “based in part on alleged probation violations that either it 

found to be not true or the State did not prove by a preponderance of the evidence.”
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III. Analysis

A. Issue One: Disqualification

A judge is disqualified by statute from presiding over any case “where [she]

has been of counsel for the State.” TEX. CODE CRIM. PROC. ANN. art. 30.01 (West 

2006). Similarly, a judge is disqualified under the Texas Constitution if she has 

“been counsel in the case.” TEX. CONST. art. V, § 11. This ensures “that criminal 

justice [is] administered free from bias or the appearance of bias.” Whitehead v. 

State, 273 S.W.3d 285, 288 (Tex. Crim. App. 2008). 

The constitutional and statutory grounds for disqualification of a judge are 

mandatory and exclusive. TEX. CONST. art. V, § 11; CRIM. PROC. art. 30.01; 

Gamez v. State, 737 S.W.2d 315, 318 (Tex. Crim. App. 1987). We have found no 

authority, and none is cited by the State, that precludes these issues from being raised 

for the first time on appeal.

1 Therefore, we assume, without deciding, that Appellant

may raise his objections for the first time on appeal.

Under Article 30.01 and the relevant constitutional provisions, a judge is 

clearly disqualified if she “actively participated in the preparation of the case against 

the defendant.” Gamez, 737 S.W.2d at 319. But the constitutional and statutory

prohibition “against a judge hearing a case in which [she] has acted as counsel 

requires that [she] actually have participated in the very case which is before 

[her].” Id. (citing Holifield v. State, 538 S.W.2d 123 (Tex. Crim. App. 1976)). The 

proponent for disqualification must put forth “an affirmative showing” that the judge 

“actively [took] part in the conviction.” Carter v. State, 496 S.W.2d 603, 604 (Tex. 

 

1We note that these issues may not be raised for the first time in a habeas corpus proceeding under 

Section 11.07 of the Texas Code of Criminal Procedure. CRIM. PROC. art. 11.07 (West 2015); Ex parte 

Richardson, 201 S.W.3d 712, 714 (Tex. Crim. App. 2006); see also Davis v. State, 956 S.W.2d 555 (Tex. 

Crim. App. 1997) (outlined difference between court’s jurisdiction and a judicial disqualification 

challenged under constitutional or statutory grounds).
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Crim. App. 1973) (“an affirmative showing”); Murphy v. State, 424 S.W.2d 231, 

233 (Tex. Crim. App. 1968) (“actively [took] part in the conviction”).

The Court of Criminal Appeals has held that active participation includes 

signing several forms, reviewing and investigating a case file and making a 

recommendation for punishment, or helping prepare a case for trial. Ex parte Miller, 

696 S.W.2d 908, 910 (Tex. Crim. App. 1985) (holding that signing an application 

for jury waiver, a plea-bargain agreement, an agreed motion to modify probation, 

and a first motion to adjudicate guilt, together constituted active participation), 

overruled on other grounds by Ex parte Richardson, 201 S.W.3d at 712–13 (holding 

that, at habeas proceeding, collateral attack of disqualification requires preservation 

at trial level); Lee v. State, 555 S.W.2d 121, 125 (Tex. Crim. App. 1977) (review and 

recommend punishment); Prince v. State, 252 S.W.2d 945, 946–47 (Tex. Crim. App. 

1952) (help prepare case).

Conversely, the Court of Criminal Appeals has held that a perfunctory act, a 

typed name on a docket sheet alone, and a lack of evidence that the judge “actually 

investigated, advised or participated in [the] case in any way” are not enough to show 

active participation. Gamez, 737 S.W.2d at 319–20 (holding that rubber-stamping a

signature is a perfunctory act that does not fall within the meaning of “‘counsel in 

the case’ as contemplated by either the constitutional or statutory provision”); 

Carter, 496 S.W.2d at 603–04 (docket sheet); Rodriguez v. State, 489 S.W.2d 121, 

123 (Tex. Crim. App. 1972) (failure to investigate, advise, or participate).

Nothing in the record affirmatively shows that Judge Darr reviewed or 

investigated Appellant’s case or gave any recommendation as to his punishment, as 

was shown in Lee. See Lee, 555 S.W.2d at 125. In addition, nothing in the record 

proved that Judge Darr helped prepare the case for trial in any way, which 

distinguishes this case factually from Prince. See Prince, 252 S.W.2d at 946–47. 

Furthermore, Judge Darr’s actions amounted to even less involvement than the 
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judge’s actions in Miller; the judge in Miller, while he served as an assistant district 

attorney, signed several forms in addition to a jury waiver form. See Miller, 696 

S.W.2d at 910. Instead, Appellant’s case is more similar to Gamez, where the judge 

simply stamped his name, as an assistant district attorney, to help a fellow assistant 

district attorney with documentation in the case. See Gamez, 737 S.W.2d at 319–

20. The judge in Gamez testified that the form, which was stamped with his

signature, was printed and filled out but that the handwriting on the form was not his

handwriting. Id. at 318. Similarly, the form in Appellant’s case is printed, and

Appellant’s name and the case number are handwritten on the form. However, we 

have no evidence of whose handwriting appeared on the form. Additionally, Byer 

or Nodolf represented the State at all other hearings and signed all other forms. 

Although Judge Darr’s initials appear on the docket sheet and she represented 

the State at a hearing, the record shows that she simply handed a form to Appellant 

and signed that form on behalf of the State. These actions are perfunctory because,

oftentimes, attorneys in a district attorney’s office will have to fill in for each other 

in cases without having investigated the case personally, especially in counties with 

larger case dockets, multiple courts, and multiple assistant district attorneys. See id. 

Although Judge Darr appeared in court for three minutes, handed Appellant a form, 

and signed that form, she did not actively participate in his conviction. See Miller, 

696 S.W.2d at 910. Appellant has not affirmatively shown in the record that 

Judge Darr actively took part in his conviction. See Carter, 496 S.W.2d at 604; 

Murphy, 424 S.W.2d at 233. Judge Darr’s actions did not make her “counsel in the 

case” as contemplated by the Texas Constitution or the Texas Code of Criminal 

Procedure. See Gamez, 737 S.W.2d at 319–20. Judge Darr’s actions did not 

disqualify her from presiding over Appellant’s revocation hearing, and the 

judgments are not void. We overrule Appellant’s first issue in each appeal.
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B. Issue Two: Due Process Violation

Appellant argues that the trial court violated his rights to due process when it 

assessed punishment based on certain probation violations. Appellant specifically 

“does not challenge the sufficiency of the evidence to adjudicate his guilt” and 

concedes that the evidence is sufficient. Rather, Appellant challenges the 

punishment itself.

“After an adjudication of guilt, all proceedings, including assessment of 

punishment, . . . continue as if the adjudication of guilt had not been deferred.” CRIM.

PROC. art. 42.12, § 5(b) (West Supp. 2014). A trial court may assess the full range 

of punishment for the underlying charge upon an adjudication of guilt after revoking 

community supervision. See Buerger v. State, 60 S.W.3d 358, 365–66 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d) (citing Cabezas v. State, 848 S.W.2d 693, 695 

(Tex. Crim. App. 1993)). Sexual assault of a child is a second-degree felony 

punishable by imprisonment for a term of not less than two years or more than twenty 

years. TEX. PENAL CODE ANN. §§ 12.33(a), 22.011(f) (West 2011).

We review the assessment of punishment by a trial court under an abuse of 

discretion standard. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). 

Generally, if a sentence falls within the proper range of punishment, we will not 

disturb that ruling on appeal. Id. We will not reverse based upon an abuse of 

discretion in the absence of harm. Id. Appellant erroneously assumes that the trial 

court based its sentences on the violations of the terms of his community supervision.

In actuality, the trial court based its sentences on Appellant’s original charge—

sexual assault of a child. See Buerger, 60 S.W.3d at 365–66. The trial court stated 

that it adjudicated Appellant “guilty of sexual assault in both of these cases.” The 

trial court did not abuse its discretion when it sentenced Appellant to imprisonment

for ten years, a term within the range set forth by the legislature for sexual assault of 
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a child. See PENAL § 12.33(a); Jackson, 680 S.W.2d at 814. We overrule 

Appellant’s second issue in each appeal.

IV. This Court’s Ruling

We affirm the judgments of the trial court.

MIKE WILLSON

JUSTICE 

July 16, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.