Monty Scott Phipps v. State

Court of Appeals of Texas

Monty Scott Phipps v. State

Court of Appeals of Texas·Decided January 5, 2006·No. 07-04-00374-CR·Published

Opinion

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 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.

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 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.

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