                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-133-CR


BERT SHEFFER                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Bert Sheffer brings a single issue challenging the voluntariness

of his open plea of guilt, which resulted in his conviction and enhanced twenty-

year sentence for possession of four or more, but less than two hundred, grams

of methamphetamine with the intent to deliver. See Tex. Health & Safety Code




      1
          … See Tex. R. App. P. 47.4.
Ann. §§ 481.102(6), 481.112(a), (d) (Vernon Supp. 2009); Tex. Penal Code

Ann. § 12.42(c)(1) (Vernon Supp. 2009). We affirm.

                        Factual and Procedural Background

      On February 25, 2008, appellant pled guilty before the presiding judge of

Criminal District Court Number Three, Judge Elizabeth Berry, after she

admonished appellant on the range of punishment and the consequences of

pleading guilty. 2 Appellant asked the trial court to assess punishment after the

preparation of a presentence investigation report (PSI). When asked if he were

pleading guilty and true “freely and voluntarily” and “because you are guilty and

because the allegations are true,” appellant answered, “Yes.” The trial court

admitted appellant’s signed, written admonishments and concluded as follows:

“I accepted your pleas. I’m not going to make findings on those . . . until your

pre-sentence report has been prepared.”

      The trial court set a hearing for April 24, 2009; Judge Phillip Vick was

presiding as a visiting judge. At the beginning of the hearing, the following

exchange occurred:

           [APPELLANT’S COUNSEL]: W e w ere set today for
      sentencing in front of Judge Elizabeth Berry on an open plea.




      2
          … He also pled true to the enhancement allegation.

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      [Appellant], based on my advice, pled guilty to this charge
awhile back.

       There’s a long history in this court. It’s a 2007 case that
Judge Berry’s aware of, a lot of history going forward with illness
and court appearances and bond caseload that has been discussed
with Judge Berry prior to my client being advised by me to enter an
open plea in front of Judge Berry. And based on my advice, my
client did that, and based on my advice that Judge Berry would be
the one determining the sentence in this case after we waived all
of our constitutional rights and did a presentence investigation.

      That was completed and myself and my client appear in court
today and for the first time are very surprised to learn that Judge
Berry is not here and that you, yourself, Judge Vick is here.

       So obviously, you know, I have some issues with that and
I’m in a real precarious position. And I want to tell the Court this
is in no way an attack on you, Judge. I hope you understand that.
It’s just there’s a lot of history here and this case is extremely
important to me and there’s been some discussions had. So I feel
that truly all of the advice I gave my client is not based on a
voluntary plea that’s predicated at this point because it was based
on the historical perspective of the judge that we pled to.

      I’m aware of the case law that says, you know, a visiting
judge can sit. But I’m trying to find anything so that I can see that
due process and fairness occurs in this case. And once again,
Judge, not to say you wouldn’t be fair, it’s just you’re not privy to
a lot of the history here and my client’s plea was predicated on
Judge Berry’s knowledge of this situation.

       I am shocked and I would be surprised in this nature. I don’t
think it’s fair and I don’t think it’s due process and this is a
situation that’s extenuating, and I think it’s difficult. The reality of
the situation is all of us know when I’m advising a client, a visiting
judge I think would generally have less leeway when we’re talking
about sentencing somebody who was not probation eligible, and
that’s what I’m begging for in this case is a deferred adjudication

                                   3
probation. I think the judge of that court would have much more
personal authority over her docket to make a decision like that.
And I do believe in advising a client as to the voluntariness of what
we should do, the intelligent waiver of all your rights when a
visiting judge comes in, I think that’s more difficult not knowing the
history to even consider going forward with a deferred adjudication
because it’s not your docket and it’s going out on a limb.

      And in my personal experience, 30 years in this practice and
a prosecutor, visiting judges have a very difficult time going out on
a limb like that.

       All these factors were predicated on my advice to [appellant]
to enter a plea of guilty to Judge Berry. And so at this time I
would advise him to withdraw his plea of guilty. I think his plea is
predicated on involuntary - - it is involuntary, it is untintelligent
because I would advise him completely different had I known we
had a visiting judge. I would not [have] advised him to plead guilty
if I had known it was a judge who didn’t know any of the historical
issues in this case, I would not [have] advised him to plead guilty.

       So at this juncture I do believe his plea is involuntary. I do
believe I would be ineffective to proceed at this time with my
client’s plea of guilty given these circumstances that I think rise to
the level of unfairness and a due process violation.

       For all of those reasons that I’m trying to cover, I’m gonna
ask the Court to either, A - - and let me state this just so the
record’s clear. When I arrived here I explained some of these
issues to you, and you would agree it would be okay if we passed
it. The prosecutor agreed to allow us to wait until Judge Berry got
back. And I guess we got a phone call that ordered us to proceed,
is that correct, Judge?

     THE COURT:       I don’t know about ordered us to proceed;
go ahead and do the docket.

      [APPELLANT’S COUNSEL]:        So everybody was in agreement
to go ahead, let Judge Berry hear the sentencing. But then it’s my

                                  4
      understanding that . . . I guess I’ll ask the Court, can we wait until
      Judge Berry gets back given all of these due process
      considerations?

            THE COURT:        Okay. As I understand it, Judge Berry
      evidently doesn’t think she knows anything about the case that
      needs her here to do this. So at this point I would proceed with
      hearing it.

Judge Vick thus denied appellant’s motion to postpone the hearing until Judge

Berry could preside.

      Appellant’s counsel then called appellant to the stand. In response to

questioning, appellant testified that he would not have pled guilty had he known

that Judge Berry would not be the judge assessing his sentence and that if any

judge other than Judge Berry had been presiding at the February 25 hearing, he

would not have pled guilty. Appellant testified that his guilty plea had thus

become involuntary and he wished to withdraw it.

      Appellant agreed that his plea was voluntary when he made it but

contended that it had become involuntary due to the changed circumstances.

He also additionally objected on due process grounds to a new judge presiding

in the middle of a unitary proceeding. The trial court overruled that objection

as well.




                                        5
                                Issue on Appeal

      In a single issue, appellant contends that Judge Vick’s denial of his

motion for continuance, coupled with the denial of his motion to withdraw his

guilty plea, was error because the plea had become involuntary.

                                Applicable Law

      A guilty plea constitutes a waiver of three constitutional rights: the right

to a jury trial, the right to confront one’s accusers, and the right not to

incriminate oneself. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.),

cert. denied, 549 U.S. 1052 (2006); State v. Collazo, 264 S.W.3d 121, 127

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).           Accordingly, to be

consistent with due process of law, a guilty plea must be entered knowingly,

intelligently, and voluntarily. Kniatt, 206 S.W.3d at 664; Jackson v. State, 139

S.W.3d 7, 13 (Tex. App.—Fort Worth 2004, pet. ref’d). A plea that was not

entered knowingly and voluntarily violates due process; thus, it is void.

McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171 (1969);

Houston v. State, 201 S.W.3d 212, 221 (Tex. App.—Houston [14th Dist.]

2006, no pet.).

      Once a trial court has accepted a defendant’s guilty plea and taken the

issue of sentencing under advisement, an accused’s guilty plea may be

withdrawn only if the trial court, acting within its discretion, permits such

                                        6
withdrawal.     Williams   v.   State,   265   S.W.3d    715,   719–20     (Tex.

App.—Texarkana 2008, no pet.); Labib v. State, 239 S.W.3d 322, 331 (Tex.

App.—Houston [1st Dist.] 2007, no pet.); Crumpton v. State, 179 S.W.3d 722,

723 n.2 (Tex. App.—Fort Worth 2005, pet. ref’d). The case has been taken

under advisement after the trial court has admonished the defendant, received

the plea and evidence, and passed the case for a PSI. Jagaroo v. State, 180

S.W.3d 793, 802 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d);

Crumpton, 179 S.W.3d at 724 & n.6 (citing Jackson v. State, 590 S.W.2d 514

(Tex. Crim. App. 1979)).     A defendant who attests during the initial plea

hearing that his plea is voluntary bears a “heavy burden” to prove in a

subsequent hearing that he entered the plea involuntarily. Coronado v. State,

25 S.W.3d 806, 809 (Tex. App.—Waco 2000, pet. ref’d); Cantu v. State, 988

S.W.2d 481, 484 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

                                    Analysis

      Appellant contended at trial that his guilty plea was predicated on Judge

Berry’s sentencing him because she was familiar with the historical issues in the

case. But appellant never specified what those issues were, nor how only

Judge Berry was uniquely qualified to address those issues. As Judge Vick

observed, “Judge Berry evidently doesn’t think she knows anything about the

case that needs her here to do this.”

                                         7
      A defendant is not entitled to a judge of his or her choice. Jackson v.

State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). A judge who did not

preside over trial may nevertheless assess punishment. Woods v. State, 569

S.W.2d 901, 902–03 (Tex. Crim. App. 1978), cert. denied, 453 U.S. 913

(1981); Sanchez v. State, 124 S.W.3d 767, 768 (Tex. App.—Houston [1st

Dist.] 2003, no pet.).

      Before accepting appellant’s guilty plea, Judge Berry admonished him in

accordance with article 26.13; under that article, she was not required to

additionally admonish him she might not be the presiding judge during

subsequent proceedings. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon

Supp. 2009).     Because appellant was not entitled to the judge of his

choice—and because he points to no specific reason why Judge Berry would

have decided his punishment differently than Judge Vick 3 —we conclude and

hold that Judge Vick did not abuse his discretion by refusing to allow appellant

to withdraw his guilty plea. See Sanchez, 124 S.W.3d at 768; Mayo v. State,

No. 05-05-01523-CR, 2006 WL 3086191, at *1 (Tex. App.—Dallas Nov. 1,

2006, no pet.) (mem. op., not designated for publication).




      3
       … Appellant did not move to recuse Judge Vick, nor did he have any
specific complaints about Judge Vick presiding; he simply wanted to have
Judge Berry preside instead.

                                       8
                                Conclusion

     We overrule appellant’s sole issue and affirm the trial court’s judgment.




                                         TERRIE LIVINGSTON
                                         JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 19, 2009




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