                                   NO. 07-04-0374-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                    JANUARY 5, 2006

                          ______________________________


                         MONTY SCOTT PHIPPS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

              FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. A14271-0112; HONORABLE ED SELF, JUDGE

                         _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


       Pursuant to a plea bargain for burglary of a building, appellant Monty Scott Phipps

was granted deferred adjudication and placed on community supervision for five years.

Following a hearing on the State’s motion to proceed with an adjudication of guilt and pleas

of true to three of five allegations, the court found appellant had violated conditions of
community supervision, adjudicated him guilty, and assessed punishment at two years

confinement and a $1,000 fine. Presenting five issues,1 appellant questions whether (1) the

trial court erred in failing to refer a motion to recuse to another judge for consideration; (2)

the trial court erred in failing to consider or rule on his motion to recuse; (3) his right to due

process was violated where the court had a bias against him based on a prior incident with

his father which affected sentencing; (4) the court erred in refusing to consider all the

evidence before sentencing where the court refused to contact the community supervision

officer to obtain his opinion on appellant’s progress; and (5) the trial court erred in not

setting a hearing on a motion for new trial that was accompanied by affidavits which

established reasonable grounds to believe the allegations in the motion were true. We

affirm.


          Appellant was granted deferred adjudication in 2001, and in 2002, an agreed order

was entered approving the transfer of his community supervision from Hale County to

McLennan County. In November 2003, appellant was arrested in McLennan County for

driving while intoxicated. After the Hale County Community Supervision Office was notified

of the arrest, the State filed a motion to proceed with an adjudication of guilt.


          At the hearing on the motion to adjudicate, appellant pled true to some of the

allegations raised by the State and evidence was presented on other allegations to which


          1
       Appellant presents five issues in the table of contents and body of the brief;
however, he only presents four issues in the “issues presented” portion of the brief and the
State only responds to four issues. We will address all five issues.

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he pled not true. Two McLennan County Officers testified about the new arrest and

appellant’s Hale County Community Supervision Officer testified in support of other

allegations presented by the State. After the State rested, defense counsel invited the trial

court to telephone Mike McPhee, appellant’s community supervision officer in McLennan

County, who was unavailable for the proceeding, and visit with him regarding appellant’s

progress for the prior year and a half. The court responded, “all right,” and asked defense

counsel to call its first witness. Appellant was the only witness for the defense and admitted

violating certain conditions of community supervision.


       Based on the evidence and pleas of true, the court adjudicated appellant guilty and

proceeded to the sentencing phase. The State reurged its evidence from the adjudication

portion of the trial and, when defense counsel was asked if he had any punishment

evidence to present, the following occurred:


       [Defense counsel]: I think that I’ve pretty much argued that. The only other
       thing that I would ask the Court is if he would just consider, before making a
       ruling on punishment, a conversation with Mr. McPhee.
       Court: I can’t do that at this time, counsel. It’s ten minutes until six. I have a
       feeling Mr. McPhee would not be available even if I tried.


Both parties then rested on punishment and the court asked appellant if he had any legal

reason why sentence should not be pronounced. Appellant responded, “[n]o,” and the court

remanded him into custody and set an appeal bond. The proceedings concluded without

appellant lodging any objections.



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       Appellant filed a motion for new trial supported by affidavits.         Among other

allegations, he suggested error by the trial court in refusing to conduct a separate

punishment hearing to present mitigating evidence and due process violations based in part

on the trial court’s bias against him due to a prior relationship between the trial court and

his father.


       We will address appellant’s issues in a logical rather than sequential order. By

issues three and four, appellant maintains his right to due process was violated where the

court had a bias against him based on a prior incident with his father which affected

sentencing, and the court erred in refusing to consider all the evidence before sentencing

where the court refused to contact the McLennan County Community Supervision Officer

to obtain his opinion on appellant’s progress. We disagree.


       After an adjudication of guilt, the trial court must give a defendant an opportunity to

present evidence in mitigation of punishment.        Issa v. State, 826 S.W.2d 159, 161

(Tex.Cr.App. 1992). When the trial court asked the defense if it had any punishment

evidence to present, counsel urged the trial court to telephone McPhee. When the trial

court declined to do so, appellant did not object. Furthermore, when asked by the trial

court, he gave no reason why sentence should not be pronounced.


       Although article 42.12, section 5(b) of the Texas Code of Criminal Procedure permits

an appeal from assessment of punishment after an adjudication of guilt, it is still necessary

to preserve the complaint for appellate review. See Tex. R. App. P. 33.1(a)(1)(A). See also

                                              4
Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Cr.App. 1999). By issues three and four,

appellant raises error in the punishment phase of the proceedings.               The record

demonstrates he was given an opportunity to present punishment evidence, and that is all

that is required. See Pearson v. State, 994 S.W.2d 176, 179 (Tex.Cr.App. 1999) (en banc).

Appellant’s failure to object to the trial court’s refusal to contact McPhee in McLennan

County waives his complaint for appellate review. Issues three and four are overruled.


       By his first and second issues, appellant contends the trial court erred in failing to

refer a motion to recuse to another judge for consideration and in failing to consider or rule

on the motion to recuse.2 We disagree. Recusals in criminal cases are governed by Rule

18a of the Texas Rules of Civil Procedure. See De Leon v. Aguilar, 127 S.W.3d 1, 5

(Tex.Cr.App. 2004). See also Arnold v. State, 853 S.W.2d 543, 544 (Tex.Cr.App. 1993) (en

banc). Rule 18a(a) provides that at least ten days prior to a trial date or other hearing, a

party may file a motion stating the ground why a judge should not sit on a case.


       The criminal law has developed to allow a criminal trial judge to make an initial

determination on whether the motion conforms with the mandatory requirements of Rule

18a. Arnold, 853 S.W.2d at 544-45. A trial judge’s obligation to recuse or refer the motion

does not come into play until a formal, timely written and verified motion is filed. Spigener

v. Wallis, 80 S.W.3d 174, 180 (Tex.App.–Waco 2002, no pet.).


       2
       Although appellant filed a “motion to disqualify,” the substance of the document is
a request for recusal based on bias. Cf. Tex. Code Crim. Proc. Ann. art. 30.01 (Vernon
Supp. 2005).

                                              5
       The hearing on the State’s motion to adjudicate was held on April 19, 2004, and

appellant filed his recusal motion on May 19, 2004, the same date he filed his motion for

new trial. He alleged the trial judge could not objectively rule on his motion for new trial.

The motion to recuse was supported by an affidavit from appellant’s father providing

reasons for potential bias by the trial judge. According to the affidavit, appellant’s father

was terminated in 1993, when the trial judge was in private practice and represented

appellant’s father’s employer. As a result of the termination, legal proceedings followed.

During a hearing in 1994, appellant’s father observed Judge Self prying into the father’s

brief case and confronted him about it. Harsh words were exchanged and appellant’s father

told Judge Self “he would regret the day he ever messed with [his] family.”


       Appellant’s father also averred that he expressed concern about Judge Self to

appellant’s attorneys prior to the adjudication hearing, but a strategic decision was made

not to file a motion to recuse out of fear it would aggravate any bias. He concluded that in

hindsight the motion to recuse caused Judge Self to impose the maximum sentence.


       Appellant concedes that timeliness of his motion to recuse is at issue. However,

relying on George v. State, 20 S.W.3d 130 (Tex.App.–Houston [14th Dist.] 2000, pet. ref’d),

he argues his motion was timely because it was directed at a hearing on the motion for new

trial. The State urges that the motion to recuse should have been filed at least ten days

prior to the adjudication hearing and that failure to do so waived any complaint of the denial




                                              6
of an opportunity to have the motion heard by another judge. See Arnold, 853 S.W.2d at

544-45. See also DeBlanc v. State, 799 S.W.2d 701, 705 (Tex.Cr.App. 1990) (en banc).


       In George, the defendant urged on appeal that the trial judge erred in presiding over

the motion for new trial hearing because the judge’s conduct during trial was the central

issue to be decided. Id. at 136. No motion to recuse, however, was filed. The court of

appeals suggested that a motion to recuse directed at the motion for new trial hearing could

have attempted to foreclose the possibility of having a biased judge rule on the motion for

new trial. Id. 138-39.


       George, however, is distinguishable. The judge who presided over a jury trial left to

attend a judicial conference before the jury returned a verdict. Another judge was asked

to receive the verdict. After the jury indicated it was deadlocked, the judge instructed them

to continue deliberating. Meanwhile, a plea agreement was being negotiated. Allegations

were made that during plea discussions with the judge, the judge threatened, intimidated,

and coerced a guilty plea from defendant. The grounds for possible recusal were not

known until after trial. See generally Martin v. State, 876 S.W.2d 396, 397 (Tex.App.–Fort

Worth 1994, no pet.) (noting that the ten-day requirement is not absolute and does not

contemplate a situation in which a party cannot know the grounds for recusal until after the

motion would no longer be timely). In the underlying case, the alleged reasons for recusal

were known more than ten days prior to the hearing on the motion to adjudicate. We

decline to apply George to the facts presented here. We conclude Judge Self’s inaction on


                                             7
the motion was not error. See Bruno v. State, 916 S.W.2d 4, 8 (Tex.App.–Houston [1st

Dist.] 1995, no pet.). Issues one and two are overruled.


       By his final issue, appellant contends the trial court erred in not setting a hearing on

his motion for new trial that was accompanied by affidavits that established reasonable

grounds to believe the allegations in the motion were true. We disagree. A defendant is

entitled to a hearing on a motion for new trial if the motion and accompanying affidavits

raise matters not determinable from the record upon which the defendant could be entitled

to relief.   Wallace v. State, 106 S.W.3d 103, 108 (Tex.Cr.App. 2003) (en banc).

Additionally, the defendant must present the motion to the trial court. Rozell v. State, 176

S.W.3d 228, __ (Tex.Cr.App. 2005).


       The record demonstrates the motion was timely presented to the trial court. See

Tex. R. App. P. 21.6. By his motion for new trial and accompanying affidavits, appellant

presented the following grounds for relief:


       C      he was sentenced without being given an opportunity to present
              punishment evidence;
       C      the trial court erred in refusing to contact his community supervision
              officer in McLennan County;
       C      the court erred in refusing to allow him to present evidence on the
              prosecutor’s recommendation;
       C      the judgment and sentence were contrary to law; and
       C      his due process rights were violated because the trial court’s decision
              was based in part on a prior relationship with his father.



                                              8
       As previously discussed, appellant was given an opportunity to present evidence in

mitigation of punishment and failed to object when the trial court imposed sentence, thereby

waiving any complaint regarding sentencing. Additionally, the judgment and sentence were

not contrary to law. Article 42.12, section 5(b) of the Code of Criminal Procedure denies

a defendant the right to appeal a trial court’s decision to adjudicate guilt. Finally, appellant’s

argument that the trial judge’s bias violated his due process rights was disposed of in his

issues complaining of the trial court’s refusal to recuse or refer the motion to recuse. We

conclude there were no issues raised in the motion for new trial that were not already

determinable from the record. Issue five is overruled.


       Accordingly, the trial court’s judgment is affirmed.


                                            Don H. Reavis
                                              Justice


Do not publish.




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