                                                                  PD-1054&1055-15
                                                       COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                       Transmitted 9/22/2015 3:26:27 PM
                  NOS. PD-1054-15 & PD-1055-15           Accepted 9/24/2015 3:20:18 PM
               _________________________________                         ABEL ACOSTA
                                                                                 CLERK

                            IN THE
                COURT OF CRIMINAL APPEALS
                           OF TEXAS
               _________________________________

                   ANTHONY AUSTIN METTS

                               VS.

                     THE STATE OF TEXAS
               _________________________________

          ON DISCRETIONARY REVIEW FROM THE
               COURT OF APPEALS FOR THE
         ELEVENTH JUDICIAL DISTRICT OF TEXAS
                      AT EASTLAND
         CAUSE NOS. 11-13-00203-CR & 11-13-00204-CR
             _________________________________

              Appealed from the 385th District Court
                   of Midland County, Texas
                Cause Nos. CR29169 & CR29170
              _________________________________

          PETITION FOR DISCRETIONARY REVIEW
             _________________________________

                                         Josh Schaffer
                                         State Bar No. 24037439

       September 24, 2015                1021 Main St., Suite 1440
                                         Houston, Texas 77002
                                         (713) 951-9555
                                         (713) 951-9854 (facsimile)
                                         josh@joshschafferlaw.com
                                         Attorney for Appellant
ORAL ARGUMENT REQUESTED                  ANTHONY AUSTIN METTS
                           IDENTITY OF THE PARTIES

Appellant:                         Anthony Austin Metts
                                   Inmate No. 1870376
                                   Eastham Unit
                                   2665 Prison Road #1
                                   Lovelady, TX 75851

Trial Counsel (Plea):              J. Michael Cunningham
                                   1209 W. Illinois
                                   Midland, Texas 79701

Trial Counsel (Adjudication):      Rodion Cantacuzene & Elizabeth Rainey
                                   1605 N. Big Spring St.
                                   Midland, Texas 79701

Appellate Counsel:                 Josh Schaffer
                                   1021 Main St., Suite 1440
                                   Houston, Texas 77002

Trial Prosecutor (Plea):           Robin Malone Darr & Elizabeth Byer
                                   500 N. Loraine, Ste. 200
                                   Midland, Texas 79701

Trial Prosecutor (Adjudication):   Laura Nodolf
                                   500 N. Loraine, Ste. 200
                                   Midland, Texas 79701

Appellate Prosecutor:              Carolyn Thurmond
                                   500 N. Loraine, Ste. 200
                                   Midland, Texas 79701

Trial Judge (Plea):                Willie DuBose
                                   500 N. Loraine
                                   Midland, Texas 79701

Trial Judge (Adjudication):        Robin Malone Darr
                                   500 N. Loraine
                                   Midland, Texas 79701



                                      i
                                                 SUBJECT INDEX
                                                                                                                        Page

STATEMENT OF PROCEDURAL HISTORY ..................................................                                         1

STATEMENT REGARDING ORAL ARGUMENT ..........................................                                               2

GROUND FOR REVIEW.....................................................................................                     2

         THE ELEVENTH COURT OF APPEALS ERRED IN HOLDING
         THAT A DISTRICT JUDGE WHO PRESIDED OVER A
         PROBATION REVOCATION PROCEEDING, ADJUDICATED
         GUILT, AND ASSESSED A PRISON SENTENCE WAS NOT
         CONSTITUTIONALLY AND STATUTORILY DISQUALIFIED
         EVEN THOUGH SHE PREVIOUSLY REPRESENTED THE
         STATE IN THE SAME CASE BY WAIVING THE STATE’S
         RIGHT TO A JURY TRIAL WHEN THE DEFENDANT
         ACCEPTED A PLEA BARGAIN.

STATEMENT OF THE CASE .............................................................................                        2

ARGUMENT .........................................................................................................         3

         A.        Statement Of Facts............................................................................          3

         B.        Arguments And Authorities .............................................................                 5

                   1.        The Applicable Law Regarding Judicial Disqualification ....                                   5

                   2.        The Court Of Appeals’ Decision ...........................................                    8

                   3.        Why The Court Should Grant Discretionary Review ...........                                   9

CONCLUSION......................................................................................................          15

CERTIFICATE OF SERVICE..............................................................................                      15

CERTIFICATE OF COMPLIANCE ....................................................................                            16

APPENDIX ............................................................................................................     17

                                                               ii
                                        INDEX OF AUTHORITIES

                                                          Cases                                                        Page

Ex parte McDonald, 469 S.W.2d 173 (Tex. Crim. App. 1971) ........................                                      7,11

Ex parte Miller, 696 S.W.2d 908 (Tex. Crim. App. 1985) ............................. 5-6,7,11

Ex parte Richardson, 201 S.W.3d 712 (Tex. Crim. App. 2006).......................                                        7

Gamez v. State, 737 S.W.2d 315 (Tex. Crim. App. 1987) ...............................                                   12

Greer v. State, 999 S.W.2d 484 (Tex. App.—Houston [14th Dist. 1999, pet.
      ref’d) .......................................................................................................    11

Gresham v. State, 66 S.W. 845 (Tex. Crim. App. 1902) ..................................                                  6

Holifield v. State, 538 S.W.2d 123 (Tex. Crim. App. 1976) ............................                                   7

Johnson v. State, 869 S.W.2d 347 (Tex. Crim. App. 1994) .............................                                    7

Lee v. State, 555 S.W.2d 121 (Tex. Crim. App. 1977) ....................................                                6,7

Metts v. State, Nos. 11-13-00203-CR & 11-13-00204-CR (Tex. App.—
      Eastland 2015) .........................................................................................           1

State ex rel. Turner v. McDonald, 676 S.W.2d 371 (Tex. Crim. App. 1984) ..                                               9

Summerlin v. State, 153 S.W. 890 (Tex. Crim. App. 1913).............................                                     6

Whitehead v. State, 273 S.W.3d 285 (Tex. Crim. App. 2008) .........................                                     5,6

Woodland v. State, 178 S.W.2d 528 (Tex. Crim. App. 1944) ..........................                                      6




                                                              iii
                                          Constitutional Provision                                                Page

TEX. CONST. art. V, § 11 ...................................................................................        5

                                             Statutory Provisions

TEX. CRIM. PROC. CODE art. 1.13(a) (West 2014) ............................................                         9

TEX. CRIM. PROC. CODE art. 30.01 (West 2014) ..............................................                         5

TEX. CRIM. PROC. CODE art. 42.12, § 3g(a)(H) (West 2014) ...........................                               10

                                                        Rules

TEX. R. APP. P. 47.1 ..........................................................................................    15

TEX. R. APP. P. 66.3(a) .....................................................................................      15

TEX. R. APP. P. 66.3(c) .....................................................................................      15

TEX. R. APP. P. 66.3(f) ......................................................................................     15

                                                  Miscellaneous

http://www.txdirectory.com/online/person/?id=24503.....................................                             4

http://www.mrt.com/import/article_a8c47708-7765-52f9-9b1d-
                   739730b6b0cd.html?mode=jqm ......................................                                4




                                                           iv
                STATEMENT OF PROCEDURAL HISTORY

      This appeal arises from two convictions for sexual assault of a child.

Appellant pled guilty pursuant to a plea agreement. The Honorable Willie DuBose

deferred an adjudication of guilt and placed him on deferred adjudication probation

for ten years and assessed a $2,500 fine on March 26, 2004.              J. Michael

Cunningham represented him through the plea proceeding. Robin Malone Darr

and Elizabeth Byer represented the State.

      The State filed a motion to adjudicate appellant’s guilt in May of 2013.

Appellant pled true to two of the alleged violations of probation and not true to the

remaining alleged violations. The Honorable Robin Malone Darr conducted a

hearing, found that he violated some of the conditions of probation, adjudicated

guilt, and assessed punishment at ten years in prison in both cases, to be served

concurrently, on May 31, 2013.        Rodion Cantacuzene and Elizabeth Rainey

represented him at the adjudication hearing.

      The Eleventh Court of Appeals affirmed the convictions in an unpublished

opinion issued on July 16, 2015. Appellant did not move for rehearing. Metts v.

State, Nos. 11-13-00203-CR & 11-13-00204-CR (Tex. App.—Eastland 2015) (not

designated for publication) (Appendix). Present counsel represented him.

      This Court previously granted an extension of time to file the petitions for

discretionary review. They must be filed by September 16, 2015.



                                            1
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument should the Court grant review because the

issue presented is important to the jurisprudence of the State, counsel enjoys

argument before the Court, and he promises that it will be valuable to the Court’s

decision-making process.

                            GROUND FOR REVIEW

             The Eleventh Court of Appeals erred in holding that a
             district judge who presided over a probation revocation
             proceeding, adjudicated guilt, and assessed a prison
             sentence was not constitutionally and statutorily
             disqualified even though she previously represented the
             State in the same case by waiving the State’s right to a
             jury trial when the defendant accepted a plea bargain
             (CR29169 C.R. 7; CR29169 Supp. C.R. 10; CR29170
             Supp. C.R. 9; 1 Supp. R.R. 2-5).

                          STATEMENT OF THE CASE

      The judgments adjudicating appellant guilty are void because the district

judge who presided over the deferred adjudication probation revocation proceeding

in 2013 was disqualified as a matter of law where she previously represented the

State as an assistant district attorney during a critical stage of appellant’s case in

2004. Specifically, she waived the State’s right to a jury trial when appellant

accepted the plea bargain from her. More than nine years later, she presided over

his adjudication hearing as a district judge, convicted him, and assessed

punishment at ten years in prison.



                                          2
       Article V, section 11 of the Texas Constitution and article 30.01 of the Code

of Criminal Procedure prohibit a judge from presiding over a case in which she

previously represented a party. However, the court of appeals held that the district

judge had not represented the State previously because she only performed a

“perfunctory act” when she waived the State’s right to a jury trial and “she did not

actively participate in [appellant’s] conviction.” Appendix at 3-5. This decision

conflicts with the applicable caselaw from this Court and the plain language of the

applicable constitutional and statutory authorities.

                                      ARGUMENT

A.     Statement Of Facts

       Appellant was indicted on January 15, 2004, for sexually assaulting H.W., a

child younger than 17 years of age who was not his spouse, on or about September

1, 2001, when he was 18 years old (CR29170 C.R. 6; CR29170 Supp. C.R. 10);

and for sexually assaulting J.B., a child younger than 17 years of age who was not

his spouse, on or about August 1, 2002, when he was 19 years old (CR29169 C.R.

6; CR29169 Supp. C.R. 11).1

       According to the docket sheets, the parties entered into a plea agreement and

executed a waiver of a jury trial in both cases on March 19, 2004 (CR29169 C.R.

7; CR29170 C.R. 7). The State was represented in that proceeding by Robin

       1
         Appellant differentiates the Clerk’s Records by the trial court cause numbers and the
designation “Supp.” for the supplemental records.


                                              3
Malone Darr, the chief prosecutor of the 385th District Court at the time, whose

initials, “RD,” appear on the docket sheet, and whose signature appears on the jury

waivers in each case (CR29169 C.R. 7; CR29169 Supp. C.R. 10; CR29170 Supp.

C.R. 9; 1 Supp. R.R. 4). Judge Willie DuBose set the case for a plea the following

week (CR29169 Supp. C.R. 9; CR29170 Supp. C.R. 8; 1 Supp. R.R. 5).

       Appellant pled guilty to both indictments pursuant to a plea agreement on

March 26, 2004 (CR29169 Supp. C.R. 22-37; CR29170 Supp. C.R. 21-36; 2 R.R.

5-11).2 Judge DuBose accepted the plea agreement, deferred an adjudication of

guilt, and placed appellant on deferred adjudication probation for ten years and

assessed a $2,500 fine (CR29169 Supp. C.R. 10-20; CR29170 Supp. C.R. 11-21; 2

R.R. 14). Elizabeth Byer represented the State at the plea.

       Soon thereafter, Robin Malone Darr became the presiding judge of the 385th

District Court of Midland County.3 More than nine years after appellant began his

probation, the State filed a motion to adjudicate his guilt on May 10, 2013, alleging


       2
         Two court reporters have filed different Reporter’s Records in this appeal with the same
volume numbers. The volume cited here is from the plea proceeding on March 26, 2004, not the
adjudication hearing on May 30, 2013.
       3
           According to the Texas State Directory, Judge Darr was a Midland County assistant
district attorney for 19 years before she became the presiding judge of the 385th District Court in
August of 2004. http://www.txdirectory.com/online/person/?id=24503. According to an article
published in the Midland Reporter-Telegram on July 18, 2004, less than four months after she
represented the State in appellant’s case, she had been the chief prosecutor in the 385th District
Court since its inception in 1995; and after Judge DuBose announced his retirement, the Midland
County Republican Party Executive Committee voted to nominate her for the vacancy to that
bench in July of 2004.             http://www.mrt.com/import/article_a8c47708-7765-52f9-9b1d-
739730b6b0cd.html?mode=jqm.


                                                4
that he violated his probation by tampering with his GPS electronic monitor

(CR29169 C.R. 8-9; CR29170 C.R. 8-9). It filed an amended motion to adjudicate

alleging additional violations on May 28, 2013 (CR29169 C.R. 19-25; CR29170

C.R. 19-25). Judge Darr conducted an adjudication hearing on May 30, 2013. She

found multiple violations to be true, adjudicated appellant guilty, and assessed

punishment at 10 years in prison on May 31, 2013 (CR29169 C.R. 40-50;

CR29170 C.R. 40-50; 3 R.R. 4-6).4

B.     Argument And Authorities

       At issue is whether a prosecutor who waives the State’s statutory right to a

jury trial is acting as “counsel for the State.” A commonsense interpretation and

application of the relevant law demonstrates that she is. The court of appeals

erroneously concluded to the contrary.

       1.     The Applicable Law Regarding Judicial Disqualification

       The Texas Constitution and the Code of Criminal Procedure provide that a

judge is disqualified from sitting in a case where she was counsel in the case, either

for the State or the accused. TEX. CONST. Art. V, Sec. 11; TEX. CRIM. PROC. CODE

art. 30.01 (West 2014).5 These provisions are mandatory. Ex parte Miller, 696


       4
         The judgments indicate that the court sentenced appellant on May 30, 2013, but the
Reporter’s Record demonstrates that it orally pronounced sentence on May 31.
       5
         The earliest version of article 30.01 of the Code of Criminal Procedure was enacted in
1879 and has remained identical in all pertinent parts. Whitehead v. State, 273 S.W.3d 285, 288
(Tex. Crim. App. 2008).


                                              5
S.W.2d 908, 909 (Tex. Crim. App. 1985). “It is a denial of a person’s right to

judicial impartiality to allow the State’s attorney to later become judge in the same

case. And such conduct is directly prohibited by the Constitution and statutes of

this State.” Id. at 910.

      A disqualified judge has no authority to act; this issue cannot be waived and

renders the judgment null and void. Whitehead v. State, 273 S.W.3d 285, 286, n. 3

(Tex. Crim. App. 2008) (“We have long recognized, and held, that if a trial court

judge is disqualified under Article 30.01 from presiding at a trial, then any

resulting judgment is a nullity and may be challenged for the first time on

appeal.”); Lee v. State, 555 S.W.2d 121, 124 (Tex. Crim. App. 1977) (judge who

presided over jury trial was disqualified, and judgment of conviction void, where

he previously served as chief prosecutor who evaluated case and sent defense

counsel letter recommending life sentence based on defendant’s “deplorable”

record); Gresham v. State, 66 S.W. 845 (Tex. Crim. App. 1902) (judgment void

where judge disqualified because related to defendant within third degree of

consanguinity). The parties cannot consent to a disqualified judge presiding over a

case, id. at 845; Woodland v. State, 178 S.W.2d 528, 529-30 (Tex. Crim. App.

1944); Summerlin v. State, 153 S.W. 890, 892 (Tex. Crim. App. 1913). The

defendant need not object in the trial court to preserve the issue for appeal, as long

as the judge actually participated as counsel in the same case which is now before



                                          6
her. Holifield v. State, 538 S.W.2d 123, 125 (Tex. Crim. App. 1976); Johnson v.

State, 869 S.W.2d 347, 348-49 (Tex. Crim. App. 1994).6

       The appellant must make an “an affirmative showing that the judge actually

acted as counsel in the very case before [her].” Ex parte Miller, 696 S.W.2d at

909.       Where a judge actively participated in a prosecution that resulted in

probation, she may not thereafter preside over a revocation proceeding in the same

case. Id. at 909-10 (judge presiding over adjudication proceeding disqualified, and

judgment void, where his signature appeared as counsel for State on jury waiver);

Ex parte McDonald, 469 S.W.2d 173, 174 (Tex. Crim. App. 1971) (prior

conviction void where judge who revoked probation represented State in original

prosecution).7 It is irrelevant that the judge does not remember her involvement in

the case as a prosecutor when she presides over the case as a judge. Lee, 555

S.W.2d at 123-25.

       6
         Indeed, this Court has considered the issue of a disqualified judge as unassigned error in
the interest of justice even where the appellant did not raise the issue on appeal. Lee, 555
S.W.2d at 122.
       7
          This Court overruled Miller in 2006 to the limited extent that Miller held that a
defendant may raise the issue of judicial disqualification for the first time in a habeas corpus
proceeding. Ex parte Richardson, 201 S.W.3d 712, 713-14 (Tex. Crim. App. 2006) (defendant
must raise issue of judicial disqualification either in trial court or on direct appeal). The
substantive decision in Miller remains valid—that a judge is constitutionally and statutorily
disqualified from presiding over a probation revocation hearing if she prosecuted the original
case—but it no longer allows an applicant to raise the issue for the first time on habeas.
       Richardson does not apply to appellant’s case because appellant is not raising this issue
on habeas and the judge in Richardson accepted a plea agreement on the motion to revoke the
defendant’s probation, whereas Judge Darr presided over a contested adjudication hearing
without an agreed recommendation on punishment. The Eleventh Court of Appeals assumed,
without deciding, that appellant may raise this issue for the first time on appeal. Appendix at 3.


                                                7
       2.     The Court Of Appeals’ Decision

       Appellant contended in the court of appeals that the judgments adjudicating

him guilty are void because Judge Darr was constitutionally and statutorily

disqualified from presiding over the case where she previously represented the

State when she offered the plea agreement and signed the jury waivers (CR29169

C.R. 7; CR29170 C.R. 7; CR29169 Supp. C.R. 10; CR29170 Supp. C.R. 9; 1 Supp.

R.R. 3). The State ultimately conceded that Judge Darr was the prosecutor who

signed the jury waivers for the State when appellant accepted the plea bargain.8

Therefore, without any contested factual issues, the court of appeals only had to

decide whether, as a matter of law, Judge Darr acted as “counsel for the State”

when she waived the State’s right to a jury trial and participated as the prosecutor

at the hearing at which appellant notified the trial court that he had accepted the

State’s plea bargain.

       The court of appeals held that Judge Darr did not act as counsel for the State

because she performed a “perfunctory act” when she waived the State’s right to a

jury trial and that “she did not actively participate in his conviction.” Appendix at


       8
          The State initially equivocated on the threshold issue of whether the prosecutor’s
signature on the jury waiver form, in fact, belonged to Judge Darr. State’s Brief in the Court of
Appeals at 22 (“Judge Darr’s signature appears on the Waiver of Jury, but this has not been
verified”) (emphasis added). Appellant then challenged the State either to admit that Judge Darr
signed the jury waiver form or to assert who signed it if she did not do so. Appellant’s Reply
Brief in the Court of Appeals at 2-3. Thereafter, the State conceded that Judge Darr signed the
jury waiver form and appeared for the State at the pretrial hearing on March 19, 2004. State’s
Reply Brief in the Court of Appeals at 3.


                                               8
3-5. This conclusion erroneously conflicts with the applicable caselaw from this

Court, as well as with the applicable constitutional and statutory authorities. It also

conflicts with the intent of the parties and public policy.

      3.     Why The Court Should Grant Discretionary Review

      The Code of Criminal Procedure establishes as a matter of law that Judge

Darr acted as counsel for the State when she signed the jury waivers. The State has

a statutory right to a jury trial. TEX. CRIM. PROC. CODE art. 1.13(a) (West 2014).

A defendant may waive a jury trial “with the consent and approval of . . . the

attorney representing the state.” TEX. CRIM. PROC. CODE art. 1.13(a) (emphasis

added). “[T]he consent and approval of the attorney representing the state shall be

in writing, signed by that attorney, and filed in the papers of the cause before the

defendant enters the defendant’s plea.” Id. (emphasis added). Therefore, Judge

Darr must have been the “attorney representing the state” when she signed the jury

waivers; otherwise, she would not have signed them.

      A prosecutor’s consent to the defendant’s waiver of a jury trial is not a

“perfunctory” act. Rather, it is a critical stage of a criminal proceeding. For

example, a court has a ministerial duty to conduct a jury trial where the State

refuses to consent to a defendant’s waiver of a jury trial. State ex rel. Turner v.

McDonald, 676 S.W.2d 371, 374 (Tex. Crim. App. 1984). There is no alternative,

commonsense way to interpret article V, section 11 of the Texas Constitution and



                                           9
article 30.01 of the Code of Criminal Procedure other than in harmony with article

1.13(a).   The court of appeals ignored this statutory provision, even though

appellant presented this argument in a pre-submission letter brief and during the

oral argument.    The court of appeals’ decision cannot be squared with any

interpretation of article 1.13(a), much less a commonsense one.

      The waiver of a jury trial was especially significant in appellant’s case

because he was charged with “3g” offenses. As a result, he could not have

received probation from the court had the State refused to waive a jury. See TEX.

CRIM. PROC. CODE art. 42.12, § 3g(a)(H) (West 2014) (judge cannot impose

probated sentence on defendant charged with sexual assault under section 22.011

of Penal Code). The court could give him probation only if the State waived a jury

and the court deferred a finding of guilt. Where the plea agreement called for him

to receive deferred adjudication probation, the State’s consent to his jury trial

waivers was an essential procedural component of that agreement. Accordingly,

Judge Darr’s consent to the waivers was not “perfunctory.” The court of appeals

ignored this argument, which appellant presented during the oral argument.

      The court of appeals’ decision also conflicts with the intent of the parties

when they executed the jury trial waivers. Judge DuBose, defense counsel, the

district clerk, and the court reporter all believed that Judge Darr represented the

State at the hearing on March 19, 2004. The clerk listed her initials as “counsel for



                                         10
the State” on the docket sheet (CR29169 C.R. 7), and the court reporter listed her

as “counsel for the State” in the Reporter’s Record (1 Supp. R.R. 2). Judge

DuBose and defense counsel believed that she had authority to bind the State to the

jury waivers; otherwise, Judge DuBose would not have accepted the waivers and

set the case for a plea the following week. The court of appeals ignored this

argument, which appellant presented during the oral argument.

      The court of appeals’ decision also conflicts with the controlling, well-

established caselaw. This Court has held that a judge who previously participated

in a prosecution that resulted in probation could not later preside over a probation

revocation proceeding in the same case. Miller, 696 S.W.2d at 909-10; McDonald,

469 S.W.2d at 174. In Miller, the judge who revoked the defendant’s probation

had signed the jury waiver for the State at the time of the plea. In Greer v. State,

999 S.W.2d 484, 487-88 (Tex. App.—Houston [14th Dist. 1999, pet. ref’d), the

judge, who previously was a prosecutor in the same court in which the defendant

received probation, was thereafter disqualified from presiding over his probation;

her order modifying the conditions of probation was void; and those conditions

could not thereafter form the basis of a subsequent revocation. The court of

appeals did not mention or attempt to distinguish McDonald or Greer.              It

distinguished Miller by observing that the judge who previously represented the

State in that case had signed other forms in addition to the jury trial waiver.



                                        11
Appendix at 4-5. That is a distinction without a difference, as the act of signing

other forms did not diminish the significance of signing the jury waiver.

Importantly, the court of appeals did not attempt to explain how a prosecutor could

sign a jury waiver if she was not “counsel for the State.” The court of appeals

decided this important question of law in conflict with the applicable decisions of

this Court and the Fourteenth Court of Appeals.

      Instead, the court of appeals compared Judge Darr’s participation in

appellant’s case to Judge Roy Barrera’s role in Gamez v. State, 737 S.W.2d 315,

318-19 (Tex. Crim. App. 1987). Appendix at 5. Judge Barrera, who presided over

the defendant’s trial, had been an assistant district attorney when the case was

indicted. His signature stamp was used on a form announcing that the State was

ready for trial, but he had no other role in the case. The record established that

someone else filled in the blanks on the form, that he did not personally prepare or

sign it, and that someone else may have used his signature stamp. There was no

Reporter’s Record from a proceeding at which he represented the State. Indeed,

there was no evidence that he had any personal connection to the prosecution of

the case. Gamez is materially distinguishable from appellant’s case because there

is a fundamental difference between Judge Darr personally waiving the State’s

statutory right to a jury trial at a hearing on-the-record and the use of Judge

Barrera’s signature stamp on a form that was not required by law and did not waive



                                        12
any rights that belonged to the State. Gamez does not control the outcome of

appellant’s case, especially where Miller, McDonald, and Greer are more

analogous. The court of appeals’ decision to the contrary conflicts with these

applicable decisions and so far departs from the accepted and usual course of

judicial proceedings as to call for an exercise of the Court’s power of supervision.

      The court of appeals held that there is no evidence that Judge Darr “actively

participated” in appellant’s case as a prosecutor by “signing several forms,

reviewing and investigating a case file and making a recommendation for

punishment, or helping prepare a case for trial.” Appendix at 4 (emphasis added).

However, the law does not require that appellant prove that she played such an

extensive role. It is sufficient that she “actively participated” as counsel for the

State by signing the jury waivers for the State at a hearing-on-the-record when

appellant accepted the plea bargain. The court of appeals ignored that she was the

chief prosecutor of the trial court. She would have had a supervisory role over

other prosecutors who handled cases in that court, even if the record does not

demonstrate that she reviewed and investigated the case, helped prepare it for trial,

or recommended a punishment. Nevertheless, her presence as the prosecutor-of-

record when appellant accepted the plea bargain demonstrates that she approved

the punishment recommendation. Otherwise, she would not have allowed him to

accept the State’s offer, waive a jury, and set the case for a plea.



                                           13
      Finally, the court of appeals’ decision is contrary to public policy. Good

public policy does not allow a prosecutor to later become the judge in the same

case, which is why the Texas Constitution and the Legislature have prohibited it

for so long. This case also involves a narrower public policy. The right to a jury

trial is one of few rights that the Legislature has given the State in criminal cases.

There is nothing “perfunctory” about it. It is arguably the most powerful sword

that the State can draw on a defendant, next to the decision whether to dismiss a

case or offer a plea bargain. It is a critical aspect of plea negotiations because in

many cases, including appellant’s, the State can control whether the defendant can

receive probation from the court or must seek it from a jury. Here, Judge Darr

used that power to appellant’s benefit by graciously allowing him to receive

deferred adjudication probation from the court, where he could not have received

regular probation from the court had the State refused to waive a jury. It would

establish bad public policy to allow Judge Darr to preside over his contested

probation revocation proceeding where he allegedly violated the plea bargain that

she graciously offered him as a prosecutor years earlier.

      The Court should grant review because the court of appeals decided an

important question of law in conflict with the applicable decisions of this Court

and another court of appeals; so far departed from the accepted and usual course of

judicial proceedings as to call for an exercise of the Court’s power of supervision;



                                         14
and failed to address every issue raised by appellant’s arguments. TEX. R. APP. P.

47.1, 66.3(a), 66.3(c), & 66.3(f).

                                     CONCLUSION

      The Court should grant review, and order full briefing and oral argument, to

resolve this important issue.

                                              Respectfully submitted,

                                              /S/ Josh Schaffer
                                              Josh Schaffer
                                              State Bar No. 24037439

                                              1021 Main St., Suite 1440
                                              Houston, Texas 77002
                                              (713) 951-9555
                                              (713) 951-9854 (facsimile)
                                              josh@joshschafferlaw.com

                                              Attorney for Appellant
                                              ANTHONY AUSTIN METTS




                          CERTIFICATE OF SERVICE

      I served a copy of this document on Carolyn Thurmond, assistant district

attorney for Midland County; and on Lisa McMinn, State Prosecuting Attorney, by

electronic mail on September 22, 2015.

                                              /S/ Josh Schaffer
                                              Josh Schaffer




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                      CERTIFICATE OF COMPLIANCE

      The word count of the countable portions of this computer-generated

document specified by Rule of Appellate Procedure 9.4(i), as shown by the

representation provided by the word-processing program that was used to create

the document, is 3,259 words.          This document complies with the typeface

requirements of Rule 9.4(e), as it is printed in a conventional 14-point typeface

with footnotes in 12-point typeface.

                                               /S/ Josh Schaffer
                                               Josh Schaffer




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             APPENDIX

Opinion of the Eleventh Court of Appeals




                  17
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


                      MEMORANDUM OPINION
       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.
              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.




        1
         We 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).


                                                    3
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.



                                           5
      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



                                           6
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.




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