NUMBER 13-07-228-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SANTOS SOLIS A/K/A SANTOS SOLIZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Garza
Appellant, Santos Solis a/k/a Santos Soliz ("Solis"), was charged by indictment with a DWI committed on June 12, 2006. The indictment alleged two previous DWI convictions--one in 1993 and one in 1998. After a hearing before the bench, appellant was convicted of driving while intoxicated. See Tex. Penal Code Ann. § 49.04 (Vernon 2003). During the punishment phase of the trial, also before the bench, appellant pleaded true to the enhancement portion of his prior conviction in trial court number 92-CR-1291-H and admitted his prior DWI convictions. The trial court subsequently assessed punishment at sixteen years' confinement with a $5,000 fine. Appellant's counsel has filed an Anders brief in which she stated that after reviewing the record, she perceived two issues for review but rejected both as arguable grounds for reversal. The grounds are: (1) whether the trial court obtained a knowing and voluntary waiver from appellant of the right to trial by jury; and (2) whether the trial court erred by ruling on appellant's motion to recuse, rather than referring the motion pursuant to rule 18a of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 18a. After thoroughly reviewing the record, we agree that the appeal is frivolous and affirm the judgment of the trial court.
I. Factual and Procedural Background
Appellant was arrested on June 12, 2006, near the intersection of the Crosstown Expressway frontage road and Gollihar for failing to stop at two red lights. Officer Sidney Weikel testified that, once stopped, appellant smelled of alcohol, he appeared uncoordinated and confused, his eyes were bloodshot, his speech was slurred, and he appeared disheveled. Weikel further testified that appellant had difficulty unlatching his seatbelt and stumbled when exiting the vehicle. Subsequently, Officer Weikel administered three field sobriety tests: the HGN, the walk and turn, and the one-leg stand, all of which appellant poorly performed. As a result of appellant's poor performance on the field sobriety tests, Officer Weikel arrested appellant and escorted him to a detention facility where subsequent tests were conducted on videotape. Officer Weikel testified that appellant was unable to provide a sufficient sample to get a reading on the intoxilizer, but Officer Weikel noted that appellant did not have normal use of his physical and mental faculties that night.
Appellant was indicted for driving while intoxicated, his third DWI offense, which constituted a third-degree felony. See Tex. Penal Code Ann. §§ 49.04 (Vernon 2003), 49.09(b)(2) (Vernon Supp. 2007). On February 26, 2007, retired Judge Joaquin Villarreal, III heard Solis's case. After announcing ready, appellant's trial counsel requested that Judge Villarreal recuse himself from the case since Judge Villarreal had handled appellant's previous two DWI cases and allegedly recognized appellant and stated that, at a pretrial hearing, he never forgets a face. Because of Judge Villarreal's prior involvement with appellant and his comments at the pretrial hearing, appellant contends that he was unable to obtain a fair assessment of his case in both the guilt and innocence and punishment phases. Appellant further alleges that he never received admonishments from the trial court pertaining to his right to a jury trial.
On March 5, 2007, appellant was convicted of driving while intoxicated and sentenced to sixteen years' imprisonment accompanied by a $5,000 fine. Because appellant was a repeat felony offender, his punishment was enhanced to a second-degree felony, which carried a range of punishment of two to twenty years' confinement with a fine of up to $10,000. See id. §§ 12.42(a)(3) (Vernon Supp. 2007), 12.33 (Vernon 2003). Appellant filed a motion for new trial on March 7, 2007. After a hearing, the trial court denied appellant's motion for new trial on April 4, 2007. The trial court certified appellant's right of appeal on April 11, 2007. This appeal ensued.
II. Arguable Grounds
A. Waiver of jury trial
By his first arguable ground, appellant contends that his constitutional right to a trial by jury was infringed upon because (1) the trial court failed to inform appellant of his right to a trial by jury, and (2) the trial court failed to obtain a knowing and voluntary waiver of appellant's right to a jury trial. The State has not filed an appellate brief in response to appellant's contentions. See Siverand v. State, 89 S.W.3d 216, 219 (Tex. App.-Corpus Christi 2002, no pet.) ("The Texas Rules of Appellate Procedure require appellant to either file a brief or state that he no longer desires to prosecute the appeal. Tex. R. App. P. 38.8(b). However, there is no corresponding rule requiring the State to file a brief in response to appellant's brief."). As such, we will accept appellant's argument at face value and proceed. See id.
Article 1.13(a) of the Code of Criminal Procedure provides, in relevant part, that the defendant "shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State." Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon 2005). In the instant case, the record does not contain a written waiver of appellant's right to trial by jury signed by appellant, which violates article 1.13. See id. Instead, the record contains written admonishments signed by the State's attorney and Kimberly Lozano, the court clerk's assistant. At the hearing on appellant's motion for new trial, Lozano testified that she gave appellant's trial counsel a written copy of the court's admonishments. She further testified that she observed appellant's counsel discussing the admonishments with appellant and that appellant's counsel informed the court that appellant's case was going to be a bench trial and that appellant refused to sign anything.
The failure to waive the right to a jury trial in this manner is a statutory error, not a constitutional error. Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex. Crim. App. 1993); Havard v. State, 925 S.W.2d 290, 291 (Tex. App.-Corpus Christi 1996, no pet.). Such error is subject to harm analysis. Salinas v. State, 987 S.W.2d 922, 923 (Tex. App.-Corpus Christi 1999, no pet.) (op. on remand). Therefore, when waiver of a jury trial has not been properly obtained, the reviewing court must determine whether the defendant's substantial rights have been affected. Salinas, 987 S.W.2d at 923; see Jackson v. State, 76 S.W.3d 798, 801 (Tex. App.-Corpus Christi 2002, no pet.). In determining whether an error "affected substantial rights," we consider whether a party had a right to that which the error denied. Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002). If no substantial rights have been affected, the error must be overlooked. Tex. R. App. P. 44.2(b).
The trial court's judgment provided that "[t]hereupon both sides announced ready for trial, and the Defendant, Defendant's attorney, and the State's attorney agreed in open court and in writing to waive a jury in the trial of this cause and to submit it to the Court. The Court consented to the waiver of a jury." That recitation is "binding in the absence of direct proof of [its] falsity." Johnson, 72 S.W.3d at 349 (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g)). If appellant "waived" a jury trial, then he must have known about his right to a jury trial, otherwise he could not have waived it. Id. The use of the term "waive" "presumes knowledge, because 'to waive a right one must do it knowingly--with knowledge of the relevant facts.'" Id. (citing Black's Law Dictionary 1276 (7th ed. abridged 2000)). Because the judgment stated that appellant waived a jury trial, and that statement indicated that appellant knew about his right to a jury trial, then we must presume that statement is correct in the absence of direct proof of its falsity. Id. There is no such proof in the record. Although article 1.13 of the Code of Criminal Procedure was violated, appellant was not harmed by the violation because the record reflects that he was aware of his right to a jury trial and opted for a bench trial instead. See id; see also Tex. R. App. P. 44.2(b). Accordingly, we agree with the assessment of appellant's counsel that this ground is without merit.
B. Recusal of the trial judge
By his second arguable ground, appellant asserts that the trial judge erred in ruling on his motion to recuse, rather than referring the motion to another judge pursuant to rule 18a of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 18a. As previously mentioned, the State has not filed an appellate brief in response to appellant's contentions. Again, we will accept appellant's argument at face value and proceed. See Siverand, 89 S.W.3d at 219.
The procedure for recusal of judges set out in rule 18a of the Texas Rules of Civil Procedure applies in criminal cases. See Tex. R. Civ. P. 18a; De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004). Rule 18a requires that motions to recuse be made in writing, be verified, and be filed at least ten days before the trial or hearing. Tex. R. Civ. P. 18a. When a recusal motion is timely filed, rule 18a leaves a trial judge with no discretion; the trial judge must either recuse himself or refer the motion for another judge to decide. See Tex. R. Civ. P. 18a(c); De Leon, 127 S.W.3d at 5. However, the trial judge has no such duty when a recusal motion is not timely filed. See De Leon, 127 S.W.3d at 5 n.3; see also Arnold v. State, 853 S.W.2d 543, 544-45 (Tex. Crim. App. 1993). Moreover, even if such a duty were to exist, the Texas Court of Criminal Appeals has held that a trial court's failure to comply with rule 18a can be harmless where the record demonstrates that the trial judge was not biased. See De Leon, 127 S.W.3d at 6; see also McClenan v. State, 661 S.W.2d 108, 111 (Tex. Crim. App. 1983).
In the instant case, appellant made an oral request for Judge Villarreal to be recused on the day of the trial. Appellant's recusal request was premised on the fact that Judge Villarreal had handled appellant's two previous DWI cases and that Judge Villarreal stated that he remembered appellant's face. The record does not contain a written motion to recuse filed by appellant within ten days before the trial or hearing. In any event, the record reflects that Judge Villarreal did not sentence appellant to the maximum sentence of twenty years prescribed by statute. Further, Judge Villarreal's comment that he remembered appellant was innocuous and did not indicate any biases existed. Therefore, considering that appellant failed to make a written request for recusal at least ten days prior to trial and that the record does not reflect that Judge Villarreal was biased, we conclude that Judge Villarreal's failure to comply with rule 18a constituted harmless error. See Tex. R. Civ. P. 18a; see also De Leon, 127 S.W.3d at 6 (citing McClenan, 661 S.W.2d at 111); Arnold, 853 S.W.2d at 544-45. Accordingly, we agree with the assessment of appellant's counsel that this ground is without merit.
III. Compliance with Anders v. California
Appellant's counsel filed an Anders brief in which she has concluded that there is nothing that merits review on direct appeal. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in her opinion, are all issues which might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel informed this Court that: (1) she had diligently read and reviewed the record and the circumstances of appellant's conviction; (2) she believes that there are no arguable grounds to be advanced on appeal; and (3) she forwarded to appellant a copy of the brief filed in support of her motion to withdraw with a letter on June 28, 2007, informing appellant of his right to review the record and to file a pro se brief. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991); High, 573 S.W.2d at 813. On May 24, 2007, appellant's counsel filed an unopposed motion for an extension of time to file a pro se brief with this Court if appellant so desired. We granted the motion and set a deadline of June 30, 2007. The deadline has passed and appellant has not filed a pro se brief. See Anders, 386 U.S. at 744-45; see also High, 573 S.W.2d at 813.
IV. Independent Review The Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.2d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. (1) See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and without merit. See Bledsoe, 178 S.W.3d at 827-28 ("Due to the nature of Anders briefs, by indicating in the opinion it considered the issues raised in the brief and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1."). Accordingly, we affirm the judgment of the trial court.
V. Motion to Withdraw An appellate court may grant counsel's motion to withdraw in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); Stafford, 813 S.W.2d at 511 (noting that an Anders brief should be filed with a request to withdraw from the case). We grant counsel's motion to withdraw. We order counsel to advise appellant promptly of the disposition of the case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).
_______________________
DORI CONTRERAS GARZA,
Justice
Do not publish.
Tex.R.App.P. 47.2(b)
Memorandum Opinion delivered and
filed this the 14th day of February, 2008.
1. Pursuant to Bledsoe v. State, we are not obligated to address arguable grounds advanced on
appeal. However, we chose to do so in this case out of an abundance of caution and in the interest of justice.
178 S.W.3d 824, 827 (Tex. Crim. App. 2005).