                   COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI - EDINBURG

                   NUMBER 13-09-00286-CR
                   NUMBER 13-09-00288-CR

ALVIN MELVIN MERCER JR.,                               Appellant,

                               v.

THE STATE 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.


             On appeal from the 130th District Court
                 of Matagorda County, Texas.
           MEMORANDUM OPINION ON REHEARING
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
      Memorandum Opinion on Rehearing by Justice Benavides
        We grant the motion for rehearing filed by appellant Alvin Melvin Mercer Jr.,

withdraw our opinion and judgment dated May 27, 2011, and issue this opinion on

rehearing.

        In these three consolidated appeals, Mercer 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 in

appellant’s absence. We affirm.

                                        I. BACKGROUND

        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 assault, a class A misdemeanor. See TEX.

PENAL CODE ANN. § 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 class A misdemeanor.           See id. § 25.07 (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 entered into a plea bargain with the

State to plead guilty in all three cases in exchange for a 180-day sentence in county jail.

A.      Procedural History in Family-Violence Assault and Protective Order Cases


                                              2
        Mercer’s plea hearing on his family-violence assault case was scheduled for

November 6, 2008. On that same day, Mercer alleges that he filed a motion to recuse

in the protective order case arguing that Judge Nate McDonald should be recused on the

ground that he is not an attorney and, thus, should not be allowed to adjudicate criminal

matters.1 However, the docket sheet in the protective order case does not reflect that a

motion to recuse was filed on November 6, 2008. 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 the first two

misdemeanor cases and ordered a sentencing hearing for January 16, 2009. On that

same day, November 6, 2008, Mercer pleaded guilty to the felony case before Judge

Craig Estlinbaum.

        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 McDonald referred the motion to vacate and the underlying motion to

recuse to the Honorable Olen Underwood, Presiding Judge of the Second Administrative

Judicial District of Texas.         Judge Underwood assigned Judge Brady G. Elliott to hear


        1
            The Texas Constitution sets forth the eligibility requirements for a county judge:

        There shall be established in each county in this State a County Court, which 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 until 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.

TEX. CONST. art. 5, § 15. Although the constitution requires a county judge to “be well informed in the 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 adjudicating him in a criminal matter.


                                                       3
these matters, and the motions were set for hearing.

        Prior to the hearing before Judge Elliott, 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

motion to withdraw the motion to recuse on 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 pleas on his two misdemeanor charges were the product

of a plea bargain, the trial court granted him permission to appeal. See TEX. R. APP. 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 Vacate 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”
        [T.D.V.] in a lawsuit that had been filed and later served in the courtroom
        after the Matagorda County officials witnessed Mercer enter his plea.[2]

        2
        This lawsuit, styled T.D.V. v. Alvin Mercer Jr., was filed in the 23rd Judicial District Court of
Matagorda County, Texas under trial court cause number of 08-H-0628-C.

                                                   4
        Mercer argued that he would not have pleaded guilty to his crime on November 8,

2008 before Judge Estlinbaum if he had known about Pendergraft’s alleged scheme and

subsequent lawsuit against him.      Upon learning about this alleged conspiracy, Mercer

filed a civil rights lawsuit under title 42, section 1983 of the United States Code against

attorney Pendergraft, Pendergraft’s client Leca, and Matagorda County.              See 42

U.S.C.A. § 1983 (2006) (providing 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 avoid the “appearance of impropriety . . . especially at the expense of an

honorable and independent judiciary.”

        Judge 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
                                           that correct?

        ATTORNEY CULL:                     That would be my understanding, your
                                           Honor.

        JUDGE UNDERWOOD:                   All right.   Very well. . . .

                                              5
       Judge Underwood denied the motion to recuse and transferred the case back to

the trial court. The trial court granted Mercer limited permission to appeal, see TEX. R.

APP. 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,
       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 defendant’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 TEX. R. APP. P. 25.2(a)(2)(b) (“In a plea

bargain case—that is, a case in which a defendant’s plea was guilty . . . a defendant may

appeal only after getting the trial court’s permission to appeal.”).

                                        II. ANALYSIS

A.      Issue One:     The Motion to Recuse

        By his first issue, Mercer argues that the trial court erred when it accepted his

guilty pleas when a motion to recuse was on file.         Mercer sought to recuse Judge

McDonald on the ground that Judge McDonald is not an attorney, and Judge Estlinbaum

because he was employed by Matagorda County and Mercer had a pending civil lawsuit

against the County of Matagorda.

       Motions to recuse are governed by Rule 18a of the Texas Rules 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

                                              6
              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 specifically
              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 judge 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, the 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 administrative 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.

TEX. R. CIV. P. 18a(a)–(c).

       Mercer's motion to recuse is problematic for several reasons. First, and most

importantly, 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 in all counts in the three cases. This date is

corroborated by a file-stamped copy of the motion, which apparently was first presented

at the January 16, 2009 sentencing hearing. Assuming without deciding that Mercer's




                                             7
motion was properly filed on November 6, 2008,3 we note that the mandatory referral

provisions of rule 18a are not triggered if a recusal motion is procedurally

defective. 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. TEX.

R. CIV. P. 18a(a). Mercer's motion, if any, was not. The rule also provides that 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 this requirement

either.4 In short, "[a]ppellant failed to comply with [r]ule 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 his two misdemeanor cases, Mercer made no mention of the motion to

recuse. In addition, there is no documentation indicating that Judge McDonald knew

about the motion to recuse when he accepted Mercer's guilty pleas on the misdemeanor
        3
           We again note that, after a careful review of the record, we find nothing in the docket records of
trial court cause numbers 2008-0856 (family assault), 2008-0039 (violation of a protective order), or
08-376-SJ (tampering with a witness) to reflect that the motion to recuse was even filed on November 6,
2008. The only reference to it in the clerk’s record as an exhibit to a motion filed January 16, 2009.
        4
         At the hearing on the motion to recuse, the Matagorda County prosecutor indicated that he “knew
enough that if [the motion to 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 have been filed, we would not have
proceeded.”

                                                     8
cases on November 6, 2008. Similarly, we find no evidence that Judge Estlinbaum was

aware of this motion to recuse, either, when he accepted the guilty plea on the felony

count. We cannot fault a judge for failing to consider a motion when it was not brought

to the court’s attention.     See In re Smith, 263 S.W.3d at 96.        For 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 motion to recuse Judge McDonald. Mercer contends he

“was forced to accept the representation of a lawyer who did not 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

him 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.”             TEX. R. CIV. P.

10.   “When a trial court allows 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


                                                 9
Disciplinary Rule of Professional Conduct 1.15 provides, in relevant part, as follows:

        Upon termination of representation, a lawyer shall take steps to the extent
        reasonably practicable to protect a client[‘]s interests, 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. . . .

TEX. DISCIPLINARY R. PROF’L CONDUCT 1.15.                 A trial court abuses its discretion when it

grants a motion to withdraw which does not comply with rule 10. Moss, 880 S.W.2d at

51.

        Most cases discussing motions to withdraw as counsel address the granting of a

motion where the client is left without representation.              See Villegas, 711 S.W.2d at 624;

Moss, 880 S.W.2d at 51.           Here, however, Mercer complains because the court denied

the motion and forced him to be represented by counsel.5 The court’s decision ensured

that Mercer’s legal interests were protected until he secured new legal counsel, and for

this reason, 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 a month and a half later, as

soon as Mercer engaged a new attorney, the trial court granted Mercer’s motion to

substitute counsel:       an order dated April 14, 2009 reflects that attorney John Carroll

Boudreaux was substituted as counsel of record for Cull. In light of the foregoing, we


        5
           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. California, 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 record.

        Mercer did not raise ineffective assistance of counsel as a formal issue in the brief. See TEX. R.
APP. 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 Anders 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 that are supported by clear and
concise arguments with appropriate citations to authorities and to the record. See id. at R. 38.1(i).


                                                     10
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 tampering 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 TEX. CODE CRIM. PROC. ANN. 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
       after pleading to the indictment or information, or after the jury has been
       selected when trial is before a jury, the trial may proceed 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 during 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 TEX. CODE CRIM. PROC. ANN. art. 33.03.

       We note that article 33 provides that defendants “must be personally present at

the trial.” See TEX. CODE CRIM. PROC. ANN. 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 “whenever 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. CONST. amend. XI (outlining the “confrontation clause”).               The

“presence of a defendant is a condition of due process to the extent that a fair and just

                                               11
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 that 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.

      Mercer relies on cases which stand for the proposition that a defendant is entitled

to be present to defend against 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. The

hearing on Mercer’s 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 Mercer’s right to be

present. Prior to the 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


                                           12
a defendant’s presence at trial, see Proffitt v. Wainwright, 706 F.2d 311, 312 (11th Circ.

1983), we again 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 conducting the

hearing in Mercer’s absence, and that Mercer’s absence was involuntary, he could not

prevail under either the constitutional or the non-constitutional error standard.     See

Routier, 112 S.W.3d at 577 (citing TEX. R. APP. P. 44.2(a)-(b)).   “An appellant is harmed

by a constitutional error unless after reviewing the record, the reviewing court determines

beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.”     Id.; see TEX. R. APP. 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 a

defendant upon 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

Mercer because he had already pleaded guilty.      Accordingly, we overrule Mercer’s third

issue.

                                     III. CONCLUSION

         Having overruled all of Mercer’s issues on appeal, we affirm the judgments of the

trial court.


                                                        ________________________
                                                        GINA M. BENAVIDES,
                                                        Justice
Do not publish.
TEX. R. APP. P.47.2(b).

Delivered and filed the
23rd day of February, 2012.


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