In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-15-00026-CR

ROGER DALE GAMMONS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th District Court

Hopkins County, Texas

Trial Court No. 1423872

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Chief Justice Morriss
2

MEMORANDUM OPINION

Roger Dale Gammons pled guilty, in Hopkins County, to two counts of possession of more 

than four grams but less than 200 grams of a controlled substance and one count of tampering with 

physical evidence. Gammons also pled “true” to two prior felony enhancements alleged by the 

State, one each in Kaufman and Van Zandt Counties. Treated as a habitual felon,1 Gammons was 

sentenced to life in prison for each of the three charges, with the sentences to run concurrently. 

Here, Gammons appeals from his conviction on the first count of possession of more than 

four grams but less than 200 grams of a controlled substance.2 He contends that an incomplete 

admonishment regarding his eligibility for community supervision rendered his guilty plea 

involuntary, that the trial judge should have recused because the court had personal knowledge of 

disputed facts relating to the enhancement paragraph(s), and that the trial court should have recused 

because the judge previously served as Gammons’ counsel in related criminal proceedings.

We affirm the trial court’s judgment because (1) Gammons has not demonstrated that his 

plea of guilt was involuntary, (2) no error was preserved regarding any knowledge of the trial judge 

regarding any enhancement allegation, and (3) the trial judge did not serve as Gammons’ counsel 

regarding either offense used for enhancement in this case.

 

1See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014).

2

In companion cases also decided this date, bearing our cause numbers 06-15-00027-CR and 06-15-00028-CR, we 

affirm the trial court’s judgments as to the other two convictions.
3

(1) Gammons Has Not Demonstrated that His Plea of Guilt Was Involuntary

Gammons contends that his plea of guilty was not voluntary because the trial court’s 

admonishments regarding his eligibility for community supervision were inaccurate. We disagree.

In determining the voluntariness of a plea, we consider the totality of the circumstances, 

viewed in light of the entire record. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); 

Ybarra v. State, 93 S.W.3d 922, 925 (Tex. App.—Corpus Christi 2002, no pet.); Lopez v. State, 25 

S.W.3d 926, 928 (Tex. App.—Houston [1st Dist.] 2000, no pet.). “Prior to accepting a plea of 

guilty . . . , the court shall admonish the defendant of . . . the range of punishment attached to the 

offense . . . .” TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1) (West Supp. 2014). “In admonishing 

the defendant . . . , substantial compliance by the court is sufficient, unless the defendant 

affirmatively shows that he was not aware of the consequences of his plea and that he was misled 

or harmed by the admonishment of the court.” TEX. CODE CRIM. PROC. ANN. art. 26.13(c) (West 

Supp. 2014); see VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007); Seagraves 

v. State, 342 S.W.3d 176, 183 (Tex. App.—Texarkana 2011, no pet.). The court may make the 

admonitions either orally or in writing. See TEX. CODE CRIM. PROC. ANN. art. 26.13(d) (West 

Supp. 2014). If the court gives written admonitions, the court “must receive a statement signed by 

the defendant and the defendant’s attorney that he understands the admonitions and is aware of the 

consequences of his plea.” Id.

There is a presumption of regularity of the judgment and the proceedings. Lopez, 25 

S.W.3d at 928. Thus, if the record reflects that Smith was properly admonished, it presents a prima 

facie showing that the guilty plea was made knowingly and voluntarily, shifting the burden to the 
4

defendant to demonstrate that his or her plea was involuntary. Martinez v. State, 981 S.W.2d 195, 

197 (Tex. Crim. App. 1998). “Once a defendant has pled guilty and attested to the voluntary nature 

of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of 

voluntariness.” Ybarra, 93 S.W.3d at 925.

Article 26.13 does not require that the trial court admonish the defendant regarding his or 

her eligibility for community supervision.3 See Ex parte Williams, 704 S.W.2d 773, 775 (Tex. 

Crim. App. 1986); Hampton v. State, 435 S.W.3d 303, 307 (Tex. App.—Houston [1st Dist.] 2014, 

pet. ref’d). “However, if the trial court volunteers an admonishment on [community supervision], 

the court has a duty to admonish the defendant accurately.” Hampton, 435 S.W.3d at 307; see 

Williams, 704 S.W.2d at 775. This is because a guilty plea is involuntarily induced if it is shown 

that: (1) the trial court volunteered an admonishment that included information on the availability 

of community supervision, thereby creating an affirmative duty to provide accurate information 

on the availability of community supervision; (2) the trial court provided inaccurate information 

on the availability of community supervision, thereby leaving the defendant unaware of the 

consequences of the guilty plea; and (3) the defendant made an objective showing of being misled 

 

3Article 42.12, Section 2(2) provides:

“Community supervision” means the placement of a defendant by a court under a continuum of 

programs and sanctions, with conditions imposed by the court for a specified period during which:

(A) criminal proceedings are deferred without an adjudication of guilt; or

(B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and 

fine, is probated and the imposition of sentence is suspended in whole or in part.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 2(2) (West Supp. 2014).
5

or harmed by the inaccurate admonishment. Williams, 704 S.W.2d at 776–77; Tabora v. State, 14 

S.W.3d 332, 334 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

When an admonishment error is claimed under Article 26.13(a), the claim is not 

constitutional, because those admonishments are not constitutionally required. The purpose of 

Article 26.13(a) admonishments is to assist the trial court in ensuring that the guilty plea is 

knowingly and voluntarily entered. Thus, the claimed error is subject to a harm analysis. TEX. R.

APP. P. 44.2(b); Aguirre-Mata v. State, 992 S.W.2d 495 (Tex. Crim. App. 1999).

Here, before accepting Gammons’ respective pleas of “guilty” and “true,” the trial court 

admonished Gammons as follows:

THE COURT: In our practice around here, these are what are commonly 

referred to as open pleas; that is, that you would be acknowledging, both verbally 

in front of the Court today and in writing, that you understand what your rights are 

and that you would be giving up certain rights and entering a plea of guilty to the 

indictments without the benefit of a plea of -- without a plea-bargained agreement, 

meaning that if I follow all of this, I would -- well, any number of things.

I could find that the evidence submitted is sufficient to find you guilty, and 

almost assuredly would at least do that, because if you plead guilty in anticipation 

of what we believe and these paperwork -- these documents contain what are called 

judicial confessions, that’s sufficient for me to find you guilty.

I could find that it’s in the best interest of society and you and defer further 

proceedings without actually finding you guilty and place you on community 

supervision. We commonly call that a deferred adjudication probation. I could 

find you guilty, sentence you to some period of imprisonment of 10 years or less 

but then suspend the imposition of that sentence and place you on probation. The 

rules of probation would be the same as they are for deferred.

Or I could find you guilty and sentence you to some term of imprisonment 

for 25 to life, if I follow all that they do here, meaning when I said 10 or less, that 

would be assuming that I did not go forward with the enhanced punishment range 

that the State seeks.
6

You have been indicted for possession -- possession with intent to deliver 4 

grams or more but less than 200. That is the same as delivery, and it is a firstdegree felony. I want to make sure everybody is listening and I’m getting this right. 

[...] 

Possession -- possession with intent to deliver methamphetamine, 4 grams 

or more but less than 200, possession of that is a second-degree felony. Possession 

with intent to deliver is a first-degree felony. I’m going to get into some 

enhancement paragraphs here in just a moment. That’s the first numbered 

paragraph ending in 872.

The case ending in 873 is a tampering with physical evidence case. That by 

itself is a third-degree felony unenhanced. And then the case number ending in 

874, which there’s some discussion here, it, too, is a possession with intent to 

deliver methamphetamine, 4 grams or more but less than 200 grams, alleged to have 

occurred on or about the same date as the one two indictments before it.

But both of those unenhanced would be first-degree felonies.

. . . .

The State had -- has long since, as I think in previous pretrials, I’ve been 

made aware, indicated verbally to [Defense Counsel] that the State would be 

intending to seek a -- an enhancement of the applicable punishment ranges to that 

of what we refer to as the habitual -- Penal Code does, too -- habitual-felon statute, 

meaning that if they can prove, in addition to the alleged offenses, that before the 

commission of those offenses you had been twice convicted of non-state-jail-felony 

offenses, that they were done consecutive to one another; that is, this scenario. You 

get convicted, you go to the penitentiary; you get out, commit a new offense, get 

convicted, go to the penitentiary. They can’t be the same pen trip. Two separate 

pen trips, and they do have to result in pen trips, not successfully completed 

probated sentences. 

If the State can prove all that, then it would, in fact, enhance the punishment 

range to 25 to life. If the State could prove only one of those convictions and pen 

trip, it would bump it up. The first-degrees would be bumped up where the 

minimum term of confinement would go to 15 instead of 5, and -- and then the 

third-degree would become a second-degree. 

You understand all that, right, Mr. Gammons?

[Defendant]: Yes.
7

THE COURT: I thought you did.

After the court explained to Gammons the charges he faced and the available punishment ranges, 

Gammons entered a plea of guilty to each of the three individual charges as well as a plea of true 

to the enhancements alleged by the State. The trial court then reiterated its warnings regarding the 

consequences of pleading true to the enhancements: 

THE COURT: Okay. You’re -- so essentially you’re pleading true to those 

two enhancement paragraphs which would apply in each of the three cases, correct, 

understanding, of course, that if the Court finds that true and then finds you guilty, 

that would subject you to a punishment range of no less than 25 years nor more 

than 99 years or a term of life in the penitentiary. You understand that?

[Defendant]: Yes, sir.

Based on Gammons’ pleas and the signed plea documents, including a judicial confession, the trial 

court found that “the evidence submitted today is sufficient for me to find you guilty in each case 

and enhance you accordingly in each case.” 

Here, Gammons cannot demonstrate that his plea was involuntary. Under Article 26.13, 

the trial court admonished Gammons that he could be sentenced to ten years or less and receive 

community supervision or deferred adjudication. Written admonishments further describing the 

specific ranges of punishment were signed by Gammons. We find this sufficient to present a prima 

facie showing that the guilty plea was made knowingly and voluntarily in accordance with Article 

26.13. Martinez, 981 S.W.2d at 197.

Gammons now bears the burden of lack of voluntariness. He seeks to fulfill his burden by 

complaining that he relied on community supervision being an available remedy when he “rejected 

a plea bargain offer of twenty-five years confinement” in order to attempt to pursue a sentence of 
8

community supervision where he “failed to recognize the distinction between” the available 

remedy of deferred adjudication community supervision and the unavailable remedy of “straight 

probation.”

While the trial court volunteered an admonishment regarding community supervision, 

Gammons must show that the court’s information on the availability of community supervision

was inaccurate. See Williams, 704 S.W.2d at 776. The trial court informed Gammons that it could 

place him on deferred adjudication community supervision and “defer further proceedings without 

actually finding [him] guilty,” or possibly sentence him to “10 years or less but then suspend the 

imposition of that sentence and place [him] on [community supervision] . . . assuming that [the 

court] did not go forward with the enhanced punishment range that the State seeks.” Before 

Gammons entered his pleas, the court warned him that, if the State proved the two enhancements, 

it would “enhance the punishment range to 25 to life.” Gammons said he understood and pled 

guilty to the charges and true to the enhancements. The court again warned him that, if it found 

him guilty, his pleas of true “would subject [him] to a punishment range of no less than 25 years.” 

Given these facts, the court’s admonishments adequately explained the difference between 

deferred adjudication community supervision and regular community supervision and made clear 

that receiving community supervision was conditioned on the court’s findings regarding the 

enhancement allegations. Further, despite pleading true to the enhancement allegations, Gammons 

was still eligible for deferred adjudication community supervision, and, on appeal, Gammons twice 

argues that he rejected a plea bargain offer “in order to attempt to obtain deferred [community 

supervision].”
9

After reviewing the totality of the circumstances in this case, we conclude that Gammons 

has failed to show that his pleas were involuntary or unknowing. Therefore, we overrule this point 

of error.

(2) No Error Was Preserved Regarding any Knowledge of the Trial Judge Regarding any 

Enhancement Allegation

Gammons also argues that the trial judge should have recused himself because he had 

personal knowledge of disputed facts relating to the enhancement allegations in this case. 

Under Rule 18b(b) of the Texas Rules of Civil Procedure,

A trial judge must recuse in any proceeding in which: 

. . . .

(3) the judge has personal knowledge of disputed evidentiary facts concerning 

the proceeding;

. . . .

(5) the judge participated as counsel, adviser, or material witness in the matter 

in controversy, or expressed an opinion concerning the merits of it, while acting as 

an attorney in government service;

After the plea hearing, but before the adjudication of guilt and sentencing, the trial judge, 

the Honorable Eddie Northcutt, discovered that he had previously represented Gammons in a 

criminal matter in Rains County, Texas, and he dutifully informed the parties. The judge stated 

that, while Gammons’ Rains County case was pending, he was incarcerated due to charges in “Van 

Zandt or Kaufman, but it was one of the two counties.” In the Rains County matter, Gammons 

“pled guilty to the offense in exchange for a five-year sentence which ran concurrently with 
10

whatever [sentence] [he] had.” The judge asked if either the State or Gammons had an objection 

to him hearing the case, and both replied, “No objection.”

Gammons contends that the trial judge should have recused under Rule 18b(b)(3) and (5) 

because the judge had direct, personal knowledge that Gammons had served at least one sentence 

in the penitentiary and that at least one of the alleged enhancement paragraphs was true. “The 

parties to a proceeding may waive any ground for recusal after it is fully disclosed on the record.” 

TEX. R. CIV. P. 18b(e). Here, Judge Northcutt fully disclosed the circumstances of his prior 

representation of Gammons, and Gammons stated that he had no objection to the judge continuing 

to preside over his case. By failing to file a motion to recuse and stating that he had no objection, 

Gammons waived this issue. See TEX. R. CIV. P. 18b(e).

(3) The Trial Judge Did Not Serve as Gammons’ Counsel Regarding Either Offense Used for 

Enhancement in this Case

Gammons further contends that the trial judge was disqualified from presiding over his 

case.4 See TEX. CONST. art. V, § 11. Specifically, Gammons claims that Judge Northcutt served 

as his counsel in the Rains County case, a related criminal proceeding relevant to the case for 

which he appeared before the court, and therefore, the judge was disqualified and his conviction 

and sentence should be reversed and remanded.5

 

4Disqualification under Article V, Section 11 of the Texas Constitution may be raised at any time. Johnson v. State, 

869 S.W.2d 347, 348–49 (Tex. Crim. App. 1994). Although the Court of Criminal Appeals has questioned whether a 

preservation requirement should be imposed, it has not yet overruled the “line of cases holding that a judge’s 

disqualification may be raised for the first time on appeal.” Lackey v. State, 364 S.W.3d 837, 842–43 n.19 (Tex. Crim. 

App. 2012).

5A disqualified judge may perform a ministerial act, but “is prohibited from performing any and all acts that call for 

the exercise of judicial discretion.” Koll v. State, 157 S.W.2d 377, 379 (Tex. 1941) (concluding disqualified judge’s 

order transferring venue was void). Thus any discretionary orders or judgments by a disqualified judge are void. See 

Whitehead v. State, 273 S.W.3d 285, 289 (Tex. Crim. App. 2008) (if trial judge disqualified under Article 30.01 of 
11

“Since Texas became a state in 1845, judicial disqualification has always been a matter of 

constitutional dimension.” Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 551 (Tex. 

2006).

No judge shall sit in any case wherein the judge may be interested, or where either 

of the parties may be connected with the judge, either by affinity or consanguinity, 

within such a degree as may be prescribed by law, or when the judge shall have 

been counsel in the case.

TEX. CONST. art. V, § 11.

No judge or justice of the peace shall sit in any case where he may be the party 

injured, or where he has been of counsel for the State or the accused, or where the 

accused or the party injured may be connected with him by consanguinity or affinity 

within the third degree, as determined under Chapter 573, Government Code.

TEX. CODE CRIM. PROC. ANN. art. 30.01 (West 2006).6

There is no contention in the brief that the trial judge was interested in the outcome or 

related to the parties in this case. Gammons confusingly argues that Judge Northcutt participated 

in a portion of the matter in controversy because the five-year sentence Gammons served for the 

Rains County conviction “was one of the alleged enhancement paragraphs in the instant case.” 

While the Rains County five-year sentence was served concurrently with the sentence Gammons 

 

Texas Code of Criminal Procedure, conviction is nullity). Therefore, if Judge Northcutt was disqualified from 

Gammons’ case, the acceptance of Gammons’ pleas, the adjudication of his guilt, and the court’s sentence would be 

void, and this case would be remanded for new proceedings.

6Rule 18b(a) of the Texas Rules of Civil Procedure and Article 30.01 of the Texas Code of Criminal Procedure clarify 

when a judge is disqualified, but these statutes “expound rather than expand the Constitution.” Tesco Am., Inc., 221 

S.W.3d at 553. Therefore, regardless of whether disqualification is discussed in terms of Rule 18b(a) or Article 30.01, 

disqualification is a constitutional issue in this case. See id.; see also Kilgarlin & Bruch, Disqualification and Recusal 

of Judges, 17 ST. MARY’S L.J. 599, 602 (1986) (discussing “constitutional statutory provisions” that embody Article 

V, Section 11 of Texas Constitution).
12

was serving at the time, the State’s enhancement allegations involved convictions in only Kaufman 

and Van Zandt Counties. 

“It has been held . . . that to come within the meaning of ‘counsel in the case’ in the statute 

prescribing qualifications of judges, it must appear that the judge acted as counsel [i]n the very 

case before him.” Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim. App. 1970); see Madden 

v. State, 911 S.W.2d 236, 240 (Tex. App.—Waco 1995, pet. ref’d) (citing Gamez v. State, 737 

S.W.2d 315, 318 (Tex. Crim. App. 1987)). “A judge is not disqualified simply because he has 

prosecuted or defended the accused in past cases.” Kuykendall v. State, 335 S.W.3d 429, 432 (Tex. 

App.—Beaumont 2011, pet. ref’d). In support of this determination, the Kuykendall court relied 

on Hathorne, in which the Texas Court of Criminal Appeals wrote:

If the State or defense offers prior convictions as part of that “record” where the 

trial judge served as prosecutor or defense counsel, does this result in an automatic 

disqualification of the judge and cause a mistrial? Certainly not, even though 

evidence of such conviction may, in the discretion of the judge or jury, result in an 

increased or enhanced penalty.

Hathorne, 459 S.W.2d at 830. Gammons contends that Hathorne should be applied differently 

depending on whether the presiding judge represented the defendant as counsel for the State or the 

defense. However, Hathorne’s holding states,

We hold that the mere inclusion in the indictment or information of allegations as 

to prior convictions (for the enhancement of punishment only) does not disqualify 

the trial judge because he was of counsel in such prior conviction or convictions for 

either the State or the defense, not being within the purview of the statutory or 

constitutional prohibition of being “counsel in the case.”

. . . .

To hold otherwise would mean that a judge is not disqualified in a case by the fact 

he previously prosecuted or defended an accused in another case, or that such prior 
13

conviction was used for impeachment purposes or used as a part of the accused’s 

“prior criminal record” but the mere allegation of such conviction for the purpose 

of enhancement only would work an automatic disqualification. Such would be an 

illogical result, particularly considering the nature and purpose of the allegation of 

the prior conviction, it not being a part of the substantive offense, and taking into 

account our present bifurcated trial system. To permit the disqualification to be too 

easy could cause the cost and the delay of the administration of criminal justice to 

go out of bounds.

Id. at 833.

Here, Judge Northcutt was not statutorily or constitutionally disqualified. His service as 

Gammons’ counsel in the Rains County case did not come within the meaning of “counsel in the 

case” as used in the Texas Constitution, in Article 30.01 of the Texas Code of Criminal Procedure, 

or by Texas courts. We overrule this point of error.

We affirm the trial court’s judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: July 8, 2015

Date Decided: August 11, 2015

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