Opinion filed January 22, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-13-00009-CR
                                     __________

                      JASON DAX CREEK, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 142nd District Court
                            Midland County, Texas
                        Trial Court Cause No. CR39111


                      MEMORANDUM OPINION
      Jason Dax Creek, appellant, entered an open plea of guilty to the felony
offense of driving while intoxicated with two prior DWI convictions, and he
pleaded true to the enhancement allegation in which the State alleged a prior felony
conviction. After a hearing, the trial court assessed punishment at confinement for
a term of fifteen years. Appellant argues on appeal that the trial court should have
granted his motion for new trial and that he received ineffective assistance of
counsel. We affirm.
      Before he pleaded guilty in this case, Appellant apparently rejected a five-
year plea offer from the State. Appellant’s trial counsel advised him to turn down
the five-year offer because counsel believed that Appellant would receive a lighter
sentence based on counsel’s prior experience with the trial court.          Appellant
rejected the offer and pleaded guilty. The trial court found Appellant guilty and
informed him that it would contact Appellant’s counsel on August 29, 2012, to set
a hearing on punishment. On August 27, 2012, the presiding administrative judge
assigned Senior Judge James L. Rex to the 142nd District Court for five days
beginning October 1, 2012. When the trial court contacted the parties to set a
hearing, it apparently provided two dates during that time period and indicated that
the proceedings on both dates would be presided over by a visiting judge.
      Judge Rex presided over Appellant’s punishment hearing on October 3,
2012. The State introduced evidence of a 911 call, the traffic stop, and field
sobriety tests. Appellant testified and called several character witnesses, including
a psychologist, his mother, and his fiancée. In his closing argument to the trial
court, Appellant’s counsel did not ask for a specific sentence but asked that
Appellant be put into a program where he could continue counseling and be
monitored rather than be sentenced to a term of imprisonment. The State argued
that Appellant had been in prison for two felony DWIs and was on probation for a
new felony offense when he was arrested in this case and that Appellant had
already had a second chance. The State contended, “At some point, chance nine,
chance ten, chance 11, enough is enough. And it’s time to send someone to the
penitentiary.” The trial court assessed punishment at confinement for a term of
fifteen years.



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      Appellant’s trial counsel filed a motion for new trial and attached his own
affidavit in which he stated that, because Judge Jody Gilles found Appellant guilty,
“[i]t came as quite a surprise to Defendant and defense counsel that Judge Gilles
would not be presiding over the sentencing trial.” At the hearing on Appellant’s
motion, his trial counsel said that he was also surprised that he could not object to
the assignment. Appellant’s counsel said that he had advised Appellant to reject a
five-year plea offer because he believed—based on prior dealings with Judge
Gilles—that Appellant would receive a lighter sentence from him.            Appellant
argued that the trial court had the authority to grant a new trial on punishment and
asked the court to exercise that authority because he believed that, under these
facts, a new trial was warranted in the interest of justice. The State argued that
Appellant took a chance when he rejected the five-year plea offer and that, because
of judicial economy and the precedent that it would set, granting a new punishment
hearing was not in the interest of justice. When it denied Appellant’s motion for
new trial, the trial court explained that the issue was whether a substantive or
fundamental right was affected, and it reasoned that the ability to have a hearing
before a specific judge is not a substantive right. Appellant appeals this ruling and
also claims that counsel was ineffective because counsel based his advice on a
misunderstanding of the law.
      We first address Appellant’s complaint that the trial court erred when it
denied his motion for new trial. We review a ruling on a motion for new trial for
an abuse of discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App.
2007). We consider the evidence in the light most favorable to the ruling and defer
to the trial court’s credibility determinations. Charles v. State, 146 S.W.3d 204,
208 (Tex. Crim. App. 2004). “The test for abuse of discretion is not whether, in
the opinion of the appellate court, the facts present an appropriate case for the trial
court’s action, but rather, ‘whether the trial court acted without reference to any

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guiding rules or principles.’” State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim.
App. 2014) (quoting Herndon, 215 S.W.3d at 907). A trial judge “cannot grant a
new trial on mere sympathy, an inarticulate hunch, or simply because he personally
believes that the defendant is innocent or ‘received a raw deal.’” Herndon, 215
S.W.3d at 907. A “trial court does not have discretion to grant a new trial unless
the defendant shows that he is entitled to one under the law.” Id. It is an abuse of
discretion to grant “a new trial for a non-legal or a legally invalid reason.”
Thomas, 428 S.W.3d at 104.
      A trial court must grant a new trial based on certain grounds stated in the
Texas Rules of Appellate Procedure, and a trial court may grant a new trial in other
circumstances, including when it concludes that the trial resulted in a miscarriage
of justice. Herndon, 215 S.W.3d at 907. Although a trial court has wide discretion
when it rules on a motion for new trial in which a valid legal claim was raised, “it
should exercise that discretion by balancing a defendant’s ‘interest of justice’ claim
against both the interests of the public in finality and the harmless-error standards
set out in Rule 44.2.” Id. at 908. A trial court does not have “discretion to grant a
new trial unless the defendant demonstrates that his first trial was seriously flawed
and that the flaws adversely affected his substantial rights to a fair trial.” Id. at
909; see also TEX. R. APP. P. 44.2.
      To review the trial court’s ruling on the motion for new trial, the first step in
the analysis is to determine whether the record shows that Appellant’s first trial
was “seriously flawed.” Herndon, 215 S.W.3d at 909. In his motion for new trial,
Appellant asked for “a new trial on punishment” and argued at the hearing that he
was asking for a new trial “solely on punishment.” Moreover, Appellant did not
contend that his plea was involuntary or ask the trial court if he could withdraw his
plea. Thus, our inquiry in this case is limited to whether the punishment phase was
seriously flawed.

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      In his motion, Appellant argued that the trial court should grant a new trial
“in the interest of justice.” Appellant first argued that his fifteen-year sentence
constituted cruel and unusual punishment and, alternatively, that there was “a
serious flaw or error in the assessment of punishment that adversely affected his
substantial right to a fair trial.” At the hearing on the motion, Appellant’s counsel
argued that the court had the right to grant a new trial when there is a “serious flaw
or error in punishment” and argued that “a 15-year sentence under the facts of this
case was certainly a serious flaw.”
      The State argued at the hearing that Appellant failed to present a legal or
factual reason to entitle him to a new trial. The State noted at the hearing that
Appellant was not asking to withdraw his plea or to have a jury trial and argued
that Appellant seemed to be unhappy with the first judge’s decision and was
“attempting to have another bite at the apple.” When it denied the motion for new
trial, the trial court explained that it had “not found any instance in which a
substantive right or a fundamental right was denied to [Appellant].” The trial court
believed that “the ability to have a hearing before a specific judge” is “not a
substantive right.”
      Appellant first argues that his sentence violates the Eighth Amendment.
According to the State, Appellant’s sentence does not violate the Eighth
Amendment because he pleaded guilty to the offense and true to the enhancement
and because the fifteen-year sentence falls within the statutory range of two to
twenty years. The State is correct in that, generally, a sentence is not cruel,
unusual, or excessive if it falls within the range of punishment authorized by
statute. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). The
Eighth Amendment prohibits punishments that are “grossly disproportionate” to
the offense for which the defendant has been convicted. Bradfield v. State, 42
S.W.3d 350, 353 (Tex. App.—Eastland 2001, pet. ref’d) (citing Harmelin v.

                                          5
Michigan, 501 U.S. 957 (1991)). To evaluate the proportionality of a sentence, the
first step is to make a threshold comparison between the gravity of the offense and
the severity of the sentence. Id. If grossly disproportionate, we must then compare
Appellant’s sentence with the sentences in other cases for similar offenses. Id.
         Appellant argues that the trial court “violated his Eighth Amendment right
against cruel and unusual punishment” by sentencing him to fifteen years for this
offense.       This complaint focuses solely on the length of confinement, and
Appellant fails to compare the sentence to the gravity of the offense. Appellant did
not make an Eighth Amendment argument at the hearing, nor does he explain on
appeal why the severity of a fifteen-year sentence is grossly disproportionate to the
offense. The State argues that receiving “a longer prison sentence than he was
offered with the plea bargain does not make for a disproportionate sentence.” We
agree.
         The offense of driving while intoxicated is a Class B misdemeanor. TEX.
PENAL CODE ANN. § 49.04(b) (West Supp. 2014). When the accused has been
previously convicted two times of an offense related to operating a vehicle while
intoxicated, the offense is a third-degree felony. Id. § 49.09(b). The State alleged
in the indictment that Appellant had four1 prior misdemeanor DWI convictions,
and he was charged with felony DWI. In addition, the State alleged a prior felony
DWI conviction to enhance his punishment to that of a second-degree felony. See
id. § 12.42(a). Appellant pleaded guilty to the offense as charged in the indictment
and pleaded true to the enhancement paragraph. Thus, Appellant admitted that he
was driving while intoxicated on or about August 2, 2011, and that, before that, he
had been convicted of driving while intoxicated in 1993, in 1994, in May 2003, in
June 2003, and again in 2008. As enhanced, the range of punishment prescribed
by the legislature is confinement for two to twenty years and up to a $10,000 fine.
         1
          The first of five prior convictions alleged in the indictment was abandoned.


                                                     6
See id. § 12.33 (West 2011). Appellant’s fifteen-year sentence is not at the top of
the range, and the trial court did not assess a fine. Had this been Appellant’s first
DWI, he could have been sentenced to no more than 180 days in jail and up to a
$2,000 fine. See id. §§ 12.22, 49.04(b). It is because of Appellant’s prior DWI
convictions and his prior felony conviction that he now faces a fifteen-year term of
imprisonment.
      The Supreme Court has recognized that life imprisonment for overtime
parking would be grossly disproportionate but that, “for crimes concededly
classified and classifiable as felonies, that is, as punishable by significant terms of
imprisonment in a state penitentiary, the length of the sentence actually imposed is
purely a matter of legislative prerogative.” Rummel v. Estelle, 445 U.S. 263, 274
(1980). After reviewing the record, we cannot say that a fifteen-year sentence was
grossly disproportionate to the offense as enhanced. Accordingly, it was not error
to deny Appellant’s motion for new trial on Eighth Amendment grounds.
      Appellant’s second contention is that his fifteen-year sentence constitutes “a
serious flaw or error in the assessment of punishment.” Appellant fails, however,
to explain why the length of his sentence alone constitutes a serious flaw, and we
have already concluded that the sentence was not grossly disproportionate.
Appellant argued at the hearing that the basis for a new trial was the “inability to
object to the visiting judge” and the “inability to come to this Court and to you,
Your Honor, for the sentencing in this case.”
      We first address whether the inability to have Judge Gilles assess
punishment was a serious flaw in the punishment hearing. Appellant recognizes
that “different judges can preside over a trial and sentencing” but contends that he
cannot find any “case law in which a court has held an assignment can occur after
a guilty plea when the [district] judge was still available.” The Court of Criminal
Appeals has held that, “when a regularly elected district judge” is assigned “to

                                          7
another district court, it makes no difference if the judge of the court to which
assignment is made is functioning and presiding over the said court at the same
time.” Herrod v. State, 650 S.W.2d 814, 817 (Tex. Crim. App. 1983). Moreover,
it has been held that having a different judge assess punishment does not render a
guilty plea involuntary. See Sanchez v. State, 124 S.W.3d 767, 768–69 (Tex.
App.—Houston [1st Dist.] 2003, no pet.).
      We note that “it is proper for a different judge to sit at the punishment
hearing.” Jackson, 680 S.W.2d at 814. The presiding judge may assign a judge to
try cases and dispose of accumulated business.            TEX. GOV’T CODE ANN.
§ 74.056(a) (West 2013). Qualified visiting judges possess the same powers as the
judge of the court to which the judge is assigned. Id. § 74.059(a). After Appellant
had been found guilty, the presiding judge for the Seventh Administrative Judicial
Region, Dean Rucker, entered an order assigning Senior Judge James L. Rex of the
109th District Court to sit on the 142nd District Court of Midland County for five
days beginning on October 1, 2012. Appellant’s hearing on punishment occurred
on October 3, 2012. Appellant does not challenge the validity of the assignment or
the constitutionality of the statute authorizing the assignment. Because Judge Rex
had the same authority as Judge Gilles, we cannot conclude that the “inability” to
have Judge Gilles assess punishment is a serious flaw, nor does that affect
Appellant’s right to a fair trial. Thus, we cannot conclude that it was error to deny
Appellant’s motion for new trial on this ground.
      Appellant also argued that his inability to object to the visiting judge was a
serious flaw. We disagree that Appellant was unable to object. It is well settled
that, when a party in a civil case objects to the assignment of a visiting judge, “the
judge shall not hear the case.” GOV’T § 74.053(b); see Lanford v. Fourteenth
Court of Appeals, 847 S.W.2d 581 (Tex. Crim. App. 1993) (interpreting
Section 74.053(d) not to apply to criminal cases). Although a criminal defendant’s

                                          8
objection to an assigned judge does not automatically preclude the judge from
hearing the case, the defendant may nonetheless challenge the validity of the
assignment. See Wilson v. State, 977 S.W.2d 379, 380 (Tex. Crim. App. 1998)
(requiring pretrial objection to validity of expired assignment to preserve issue for
appeal). A defendant can also challenge the qualifications of the judge and file a
motion to recuse. See GOV’T § 74.059(c)(3). We therefore construe Appellant’s
complaint as an argument that he was unable to challenge a visiting judge who was
properly assigned and otherwise qualified.
      A defendant does not have the right to choose his judge. See Benjamin v.
State, 874 S.W.2d 132, 134 (Tex. App.—Houston [14th Dist.] 1994, no pet.). And,
as noted above, “it is proper for a different judge to sit at the punishment hearing.”
Jackson, 680 S.W.2d at 814. Consequently, we cannot conclude that the inability
to object to a properly assigned and qualified judge—because the defendant prefers
to have a different judge assess his punishment—constitutes a serious flaw in the
assessment of punishment.
      Appellant does not complain of any error that occurred during the
punishment phase, nor does he explain how a substantial right was violated.
Rather, Appellant seems to contend that, because of the unusual facts of this case, a
new punishment hearing should be granted “in the interest of justice.” However,
Appellant is not entitled to a new hearing “unless the first proceeding was not in
accordance with the law.” Herndon, 215 S.W.3d at 907. After reviewing the
record, we cannot conclude that the punishment hearing was not conducted in
accordance with the law. Therefore, the trial court did not abuse its discretion
when it denied Appellant’s motion for new trial.          Appellant’s first issue is
overruled.
      In his second issue, Appellant contends that he was denied effective
assistance of counsel during plea negotiations. The United States Constitution and

                                          9
the Texas constitution guarantee individuals the right to assistance of counsel in
criminal prosecutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. The right
to counsel means more than simply having a lawyer present; it requires effective
assistance. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). A
defendant does not have a right to errorless counsel but, rather, to objectively
reasonable representation. Id. We review the totality of the representation and the
circumstances of each case without the benefit of hindsight. Robertson v. State,
187 S.W.3d 475, 483 (Tex. Crim. App. 2006). The right to effective assistance of
counsel applies to plea negotiations. Lafler v. Cooper, 132 S.Ct. 1376, 1384
(2012).
      To determine whether counsel rendered ineffective assistance at trial, we
look at whether Appellant has shown by a preponderance of the evidence that the
representation fell below an objective standard of reasonableness and, if so,
whether Appellant has shown that there is a reasonable probability that the result
would have been different but for trial counsel’s errors. Strickland v. Washington,
466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.
App. 1986).    Counsel’s deficiency must be affirmatively demonstrated in the
record because the court must not engage in retrospective speculation.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
      Appellant contends that his trial counsel advised him to reject a five-year
offer from the State, enter an open plea of guilty, and allow the trial court to assess
punishment and, thus, that he received ineffective assistance of counsel because the
advice was based on a misunderstanding of law. We need not determine whether
counsel’s advice was based on a misunderstanding of law, however, because the
record is not sufficiently developed to show that the result would have been
different but for counsel’s advice. Appellant did not testify at the hearing on the
motion for new trial, and there is no evidence that Appellant would have accepted

                                          10
the five-year plea offer absent the advice of counsel to reject the plea deal. Absent
evidence that Appellant would have otherwise accepted the plea offer, Appellant
has not satisfied the second prong of Strickland. See Harvey v. State, 97 S.W.3d
162, 170 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (requiring
defendant—to establish prejudice—to show that he would have accepted the plea
offer). Appellant’s second issue is overruled.
      We affirm the judgment of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE

January 22, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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