Alvin Mercer, Jr. v. State ( 2011 )

COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
NUMBER 13-09-00286-CR
NUMBER 13-09-00288-CR
ALVIN MELVIN MERCER JR. Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court
of Matagorda County, Texas.
NUMBER 13-09-00430-CR
ALVIN MELVIN MERCER JR. Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 130th District Court
of Matagorda County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez, and Benavides
Memorandum Opinion by Justice Benavides
In these three consolidated appeals, Appellant, Alvin Melvin Mercer, Jr., contends
that the trial court erred by: (1) accepting a guilty plea when a motion to recuse was
pending; (2) not granting defense counsel‘s motion to withdraw; and (3) conducting a
recusal hearing on a separate motion to recuse in appellant‘s absence. We affirm.
I. BACKGROUND
Mercer had three cases pending in Matagorda County in November 2008. The
first case, trial court cause number 2008-0856 (appellate cause number
13-09-0286-CR), was for family-violence assault, a class A misdemeanor. See TEX.
PENAL CODE ANN. § 22.01(b) (West Supp. 2010). The second case, trial court cause
number 2008-0039 (appellate cause number 13-09-0288-CR) was for violating a
protective order, another class A misdemeanor. See id. § 25.07 (West Supp.
2010). The third case, trial court cause number 08-376-SJ (appellate cause number
13-09-0430-CR) was for tampering with a witness, a state-jail felony. See id. § 36.05
(West 2003). The record indicates that Mercer made a deal with the State to enter guilty
pleas in all three cases in exchange for a 180-day sentence in county jail.
A. Procedural History in Family-Violence Assault and Protective Order Cases
Mercer‘s plea hearing was scheduled for November 6, 2008 on the calendar of his
family-violence assault case. On that same day, Mercer alleges that he filed a motion
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to recuse in the protective order case. The motion argued that Judge Nate McDonald
should be recused on the ground that he is not an attorney and, thus, should not be
allowed to adjudicate criminal matters.1 However, the docket sheet in the protective
order case does not reflect that a motion to recuse was ever filed on this date. Further,
despite having allegedly filed this motion, Mercer fully participated at the plea hearing in
the family-violence assault case and failed to inform Judge McDonald about his recusal
motion in the protective order case. Judge McDonald accepted Mercer's guilty pleas for
all three cases and ordered a sentencing hearing for January 16, 2009.
At the January 16, 2009 hearing, Mercer brought the motion to recuse to Judge
McDonald‘s attention for the first time with a motion to vacate his guilty pleas. At that
time, Judge McDonald referred the motion to vacate and the underlying motion to
recuse to the Honorable Olen Underwood, Presiding Judge of the Second Administrative
Judicial District of Texas. Judge Underwood assigned Judge Brady G. Elliott to hear
these matters, and the motions were set for hearing.
Prior to the hearing before Judge Elliott, additional motions were filed. First,
Mercer‘s attorney, Frederick B. Cull, filed a motion to withdraw as counsel because he
did not want to advocate the motion to recuse. In response, Mercer filed a pro se
1
The Texas Constitution sets forth the eligibility requirements for a county judge:
There shall be established in each county in this State a County Court, which shall be a
court of record; and there shall be elected in each county, by the qualified voters, a County
Judge, who shall be well informed in the law of the State; shall be a conservator of the
peace, and shall hold his office for four years, and until his successor shall be elected and
qualified. He shall receive as compensation for his services such fees and perquisites as
may be prescribed by law.
TEX. CONST. art. 5, § 15. Although the constitution requires a county judge to ―be well informed in the law
of the State,‖ there is no requirement that the judge be a licensed attorney. Mercer, however, appeared to
challenge the constitutionality of a non-attorney to adjudicate him in a criminal matter.
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motion to withdraw the motion to recuse on the basis that he would not have an attorney
to argue the motion. When Judge Elliott finally heard all of the motions at a hearing on
March 27, 2009, he denied the motion to vacate, motion to recuse, and motion to
withdraw.
Although Mercer‘s guilty pleas were the product of a plea bargain, the trial court
granted him permission to appeal. See TEX. R. APP. P. 25.2(a)(2)(b). Accordingly,
Mercer appealed two issues from these cases: he asserted that the trial court erred
when it accepted his guilty plea when a motion to recuse was pending (issue one) and
when it denied his counsel‘s motion to withdraw (issue two).
B. Procedural History in Witness Tampering Case
Mercer filed similar motions in his witness tampering case. On January 16,
2009, Mercer filed a ―Motion to Vacate Plea, Recuse, and Disqualify‖ but against a
different judge and for a different reason. In this motion, Mercer attempted to withdraw
his guilty plea by alleging the following:
[Local attorney] William Pendergraft exercised an illegal scheme with the
Matagorda County authorities to induce the Defendant [Mercer] to plead
guilty to obtain a favorable result for himself and his client, serial ―victim‖
Tiffany Leca in a lawsuit that had been filed and later served in the
courtroom after the Matagorda County officials witnessed Mercer enter his
plea.2
Mercer argued that he would not have pleaded guilty to his crimes on November
8, 2008 before Judge McDonald if he had known about Pendergraft‘s alleged scheme
and subsequent lawsuit against him. Upon learning about this alleged conspiracy,
Mercer filed a civil rights lawsuit under title 42, section 1983 of the United States Code
2
This lawsuit, styled Tiffany D. Van Dyke v. Alvin Mercer Jr., was filed in the 23rd Judicial District of
Matagorda County, Texas under trial court cause number of 08-H-0628-C.
4
against attorney Pendergraft, Pendergraft‘s client Leca, and Matagorda County. See
42 U.S.C.A. § 1983 (1996) (providing a federal civil cause of action for the deprivation of
civil rights). Consequently, Mercer‘s motion to recuse in this case argued that, because
Matagorda County was a party to his civil rights lawsuit, the court should assign a visiting
judge to avoid the ―appearance of impropriety . . . especially at the expense of an
honorable and independent judiciary.‖
Judge Craig Estlinbaum declined to recuse himself and referred the case to the
Second Administrative Judicial Region. Judge Underwood, Presiding Judge of the
Second Administrative Judicial District, held a hearing on the motion to recuse. Mercer
did not appear at the hearing. At the hearing, the following colloquy occurred:
JUDGE UNDERWOOD: Where is your client today, Counsel?
ATTORNEY CULL: He is not present, your Honor.
JUDGE UNDERWOOD: I know he‘s not present.
ATTORNEY CULL: I‘m not sure where he is today, your
Honor. I imagine he‘s at work.
JUDGE UNDERWOOD: It‘s a voluntary absence. It‘s not an
absence that the court can control; is
that correct?
ATTORNEY CULL: That would be my understanding, your
Honor.
JUDGE UNDERWOOD: All right. Very well. . . .
Judge Underwood denied the motion to recuse and transferred the case back to
the trial court. The trial court granted Mercer limited permission to appeal, see TEX. R.
APP. P. 25.2(a)(2)(b), by issuing the following order on November 5, 2009:
I, CRAIG ESTLINBAUM, Judge Presiding, certify this criminal case is a
plea bargain case, and the Defendant has NO right of appeal, provided,
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however, that the Defendant does have the right to appeal the order on the
motion to recuse entered after the guilty plea was accepted and the trial
court found the Defendant guilty of the charged offense because that order
does not attack the propriety of the defendant‘s conviction.
Accordingly, although Mercer appealed two issues from this cause number, we
only address the issue regarding Mercer‘s absence from the hearing on the motion to
recuse (issue three). We dismiss Mercer‗s fourth issue, which was whether the trial
court erred by denying his motion for new trial, because the trial court specifically limited
his ability to appeal per the above order. See TEX. R. APP. P. 25.2(a)(2)(b) (―In a plea
bargain case—that is, a case in which a defendant‘s plea was guilty . . . a defendant may
appeal only after getting the trial court‘s permission to appeal.‖).
II. ANALYSIS
A. Issue One: The Motion to Recuse Judge McDonald
By his first issue, Mercer argues that the trial court erred when it accepted his
guilty pleas when a motion to recuse Judge McDonald was on file. Mercer sought to
recuse Judge McDonald from adjudicating his cases on the ground that Judge
McDonald is not an attorney.
Motions to recuse are governed by Rule 18a of the Texas Rules of Civil
Procedure. The rule, in relevant part, provides as follows:
(a) At least ten days before the date set for trial or other hearing in any
court other than the Supreme Court, the Court of Criminal Appeals
or the court of appeals, any party may file with the clerk of the court
a motion stating grounds why the judge before whom the case is
pending should not sit in the case. The grounds may include any
disability of the judge to sit in the case. The motion shall be verified
and must state with particularity the grounds why the judge before
whom the case is pending should not sit. The motion shall be made
on personal knowledge and shall set forth such facts as would be
admissible in evidence provided that facts may be stated upon
information and belief if the grounds of such belief are specifically
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stated.
(b) On the day the motion is filed, copies shall be served on all other
parties or their counsel of record, together with a notice that movant
expects the motion to be presented to the judge three days after the
filing of such motion unless otherwise ordered by the judge. Any
other party may file with the clerk an opposing or concurring
statement at any time before the motion is heard.
(c) Prior to any further proceedings in the case, the judge shall either
recuse himself or request the presiding judge of the administrative
judicial district to assign a judge to hear such motion. If the judge
recuses himself, he shall enter an order of recusal and request the
presiding judge of the administrative judicial district to assign
another judge to sit, and shall make no further orders and shall take
not further action in the case except for good cause stated in the
order in which such action is taken.
TEX. R. CIV. P. 18a(a)–(c).
Mercer's motion to recuse Judge McDonald is problematic for several
reasons. First, none of the docket sheets for Mercer's three underlying cases indicate
when the motion to recuse was actually filed. By his counsel's own admission, though,
Mercer apparently filed the motion to recuse on November 6, 2008, in the protective
order case—the same day that he pleaded guilty to all three cases in the family-violence
assault case setting. This date is corroborated by a file-stamped copy of the motion,
which apparently first appeared at the January 16, 2009 sentencing hearing. Assuming
without deciding that Mercer's motion was properly filed on November 6, 2008, we note
that the mandatory referral provisions of rule 18a are not triggered if a recusal motion is
procedurally defective. DeBlanc v. State, 799 S.W.2d 701, 706 (Tex. Crim. App.
1990); Vargas v. State, 883 S.W.2d 256, 259 (Tex. App.–Corpus Christi 1994, pet.
ref'd). The rule provides that motions to recuse must be on file at least ten days before a
hearing. TEX. R. CIV. P. 18a(a). Mercer's motion was not. The rule also provides that
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Mercer should have served copies of this motion to the State with a notice of hearing on
the motion. Based on the record before us, Mercer did not comply with this requirement
either.3 In short, "[a]ppellant failed to comply with Rule 18a and as such he will not be
heard to complain on appeal of the denial of an opportunity to have his motion heard by a
judge other than the one assigned to his case." DeBlanc, 799 S.W.2d at 706.
Second, we note that the trial court is not required to consider a motion unless it is
called to its attention. See In re Smith, 263 S.W.3d 93, 96 (Tex. App.–Houston [1st
Dist.] 2006, orig. proceeding); Risner v. McDonald's Corp., 18 S.W.3d 903, 909 (Tex.
App.–Beaumont 2000, pet. denied); Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.
App.–Houston [1st. Dist.] 1994, writ denied). During the hearing where Mercer pleaded
guilty to all three of his underlying cases, Mercer made no mention of the motion to
recuse. In addition, there is no documentation indicating that Judge McDonald knew
about the motion to recuse when he accepted Mercer's guilty pleas on November 6,
2008. We cannot fault a judge for failing to consider a motion when it was not brought to
the court‘s attention. See In re Smith, 263 S.W.3d at 96. For all of these reasons, we
overrule Mercer's first issue.
B. Issue Two: The Motion to Withdraw as Counsel
By his second issue, Mercer argues that the trial court erred when it denied his
defense attorney‘s motion to withdraw as counsel on March 27, 2009. Mercer's
attorney, Cull, filed a motion to withdraw as counsel on March 11, 2009, because he did
not want to prosecute Mercer's motion to recuse Judge McDonald. Mercer contends he
3
At the hearing on the motion to recuse, the Matagorda County prosecutor indicated that he ―knew
enough that if [the motion to recuse] had been filed that we would not proceed.‖ He went on to testify that
Judge McDonald was not aware of the motion either: ―I would think that the Judge would have had the
same understanding that I had, that . . . if we had known that it would have been filed, we would not have
proceeded.‖
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―was forced to accept the representation of a lawyer who did not want to represent him.‖
Mercer claims that the denial of the motion to withdraw ―runs afoul of the Sixth
Amendment‘s right to counsel‖ because Cull did not ―effectively and zealously‖ represent
him and pursue a motion he wanted urged before the court.
Texas Rule of Civil Procedure 10 provides that, ―[a]n attorney may withdraw from
representing a party only upon written motion for good cause shown.‖ TEX. R. CIV. P.
10. ―When a trial court allows an attorney to voluntarily withdraw, it must give the party
time to secure new counsel and time for the new counsel to investigate the case and
prepare for trial.‖ Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (citing Lowe v.
City of Arlington, 453 S.W.2d 379, 382 (Tex. Civ. App.–Fort Worth 1970, writ ref‘d
n.r.e.)). In addition, before a trial court allows an attorney to withdraw, it should see that
the attorney has complied with the attorney professional code of conduct. Moss v.
Malone, 880 S.W.2d 45, 51 (Tex. App.–Tyler 1994, writ denied). The Texas
Disciplinary Rule of Professional Conduct 1.15 provides as follows:
Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client[‗]s interests, such as giving
reasonable notice to the client, allowing time for employment of other
counsel, surrendering papers and property to which the client is entitled
and refunding any advance payments of fee that has not been earned. . . .
TEX. DISCIPLINARY R. PROF‘L CONDUCT 1.15. A trial court abuses its discretion when it
grants a motion to withdraw which does not comply with rule 10. Moss, 880 S.W.2d at
51.
Most cases discussing motions to withdraw as counsel address a situation where
the trial court grants the motion and leaves the client without representation. See
Villegas, 711 S.W.2d at 624; Moss, 880 S.W.2d at 51. Here, however, Mercer
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complains because the court denied the motion and forced him to be represented by
counsel.4 The court‘s decision ensured that Mercer‘s legal interests were protected
until he secured new legal counsel, and we hold that the trial court did not abuse its
discretion in denying the motion to withdraw. Moss, 880 S.W.2d at 51. We also note
that, only a month and a half later, the trial court granted Mercer‘s motion to substitute
counsel as soon as Mercer engaged a new attorney: an order dated April 14, 2009
reflects that attorney John Carroll Boudreaux was substituted as counsel of record for
Cull. In light of the foregoing, we overrule Mercer‘s second issue.
C. Issue Three: Mercer’s Absence From the Hearing on Motion to Recuse
By his third issue, Mercer argues that the trial court erred when it conducted the
hearing on the motion to recuse in the witness tampering case when he was not present.
Texas Code of Criminal Procedure article 33 provides criminal defendants with a
statutory right to be present during their trials. See TEX. CODE CRIM. PROC. ANN. art.
33.03 (West 2010); Routier v. State, 112 S.W.3d 554, 575 (Tex. Crim. App. 2003). The
statute, in relevant part, reads as follows:
In all prosecutions for felonies, the defendant must be personally present at
the trial, and he must likewise be present in all cases of misdemeanor
when the punishment or any part thereof is imprisonment in jail; provided,
however, that in all cases, when the defendant voluntarily absents himself
4
Mercer‘s briefing on issue two also makes vague and confusing references to United States
Supreme Court cases Strickland v. Washington, which discusses ineffective assistance of counsel, and
Anders v. California, which sets forth the procedure by which an appellate attorney can withdraw as counsel
when the attorney finds there is no appellate error based on a review of the record.
Mercer did not raise ineffective assistance of counsel as a formal issue in the brief. See TEX. R.
APP. P. 38.1(f) (providing that ―[t]he brief must state concisely all issues or points presented for review.‖).
Furthermore, we note that Anders arguments are usually advanced by attorneys, not appellants
themselves. Mercer‘s Anders arguments seem to contend that his counsel should not have been allowed
to proceed if he no longer wished to pursue certain pre-trial motions. In accordance with rule 38.1 of the
Texas Rules of Appellate Procedure, we can only consider contentions that are supported by clear and
concise arguments with appropriate citations to authorities and to the record. See id. at R. 38.1(i).
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after pleading to the indictment or information, or after the jury has been
selected when trial is before a jury, the trial may proceed to its conclusion.
When the record in the appellate court shows that the defendant was
present at the commencement, or any portion of the trial, it shall be
presumed in the absence of all evidence in the record to the contrary that
he was present during the whole trial. Provided, however, that the
presence of the defendant shall not be required at the hearing on the
motion for new trial in any misdemeanor case.
See TEX. CODE CRIM. PROC. ANN. art. 33.03.
We note that article 33 provides that defendants ―must be personally present at
the trial.‖ See TEX. CODE CRIM. PROC. ANN. art. 33.03 (emphasis added). In Snyder v.
Massachusetts, the United States Supreme Court explained that there is a due process
right for a defendant to be present at his trial ―whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to defend against the charge.‖
291 U.S. 97, 107 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1
(1964); see U.S. CONST. amend. XI (outlining the ―confrontation clause‖). The
―presence of a defendant is a condition of due process to the extent that a fair and just
hearing would be thwarted by his absence, and to that extent only.‖ Snyder, 291 U.S.
at 105-06, 108. The Snyder Court also held that due process does not require the
defendant‘s presence ―when [his] presence would be useless, or the benefit but a
shadow.‖ Id. at 106-07.
The cases Mercer relies upon stand for the proposition that a defendant is entitled
to be present to defend against the charge he faces. See Snyder, 291 U.S. at 107;
People v. Dokes, 595 N.E.2d 836, 838 (N.Y. 1992). Here, however, Mercer did not
have to defend himself because he had already pleaded guilty to the crime. Mercer
cites no authority, and we find none, that supports the notion that a defendant must be
present at a post-trial hearing after he voluntarily pleaded guilty to an offense. The
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hearing on this motion to recuse did not have a ―reasonably substantial‖ relationship to
his ability to guard against the charge of witness tampering. The hearing, instead, was
based on Mercer‘s motion that the court should assign a visiting judge to avoid the
―appearance of impropriety‖ given that Mercer had sued Matagorda County in an
unrelated civil rights lawsuit. Mercer‘s presence thus would have been ―useless‖ to the
opportunity to defend himself against the charge of witness tampering. See Snyder,
291 U.S. at 106-07.
Further, we note that Mercer‘s attorney effectively waived his right to be present.
Prior to the hearing, Judge Underwood stated he believed Mercer‘s absence to be a
voluntary absence. Mercer‘s counsel replied, ―That would be my understanding, your
Honor.‖ Mercer failed to show that a fair and just hearing was thwarted by his absence,
especially since his attorney was present. Id. at 105-06; see Routier, 112 S.W.3d at
577. Although Mercer is correct in contending that an attorney cannot waive a
defendant‘s presence at trial, see Proffitt v. Wainwright, 706 F.2d 311, 312 (11th Circ.
1983), we again note that the hearing on the motion to recuse was not a trial.
Finally, even if we were to assume that the trial court erred by continuing the
hearing in Mercer‘s absence, and that Mercer‘s absence was involuntary, he could not
prevail under either the constitutional or the non-constitutional error standard. See
Routier, 112 S.W.3d at 577 (citing TEX. R. APP. P. 44.2(a)-(b). ―An appellant is harmed
by a constitutional error unless after reviewing the record, the reviewing court determines
beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.‖ Id.; see TEX. R. APP. P. 44.2; see also Mares v. State, 571 S.W.2d 303,
305 (Tex. Crim. App. 1978) (―It is not everything that takes place in the absence of a
12
defendant upon trial for which a reversal should be ordered. There must be an actual
showing of injury or a showing of facts from which injury might reasonably be inferred.‖).
Here, again, the alleged error did not ―contribute to the conviction or punishment‖ of
Mercer because he had already pleaded guilty. Accordingly, we overrule this issue.
III. CONCLUSION
Because we have overruled all of Mercer‘s issues on appeal, we affirm the
judgments of the trial court.
________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P.47.2(b).
Delivered and filed the
27th day of May, 2011.
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