Lilley, Michael Joseph v. State

Opinion issued April 17, 2003 In The Court of Appeals For The First District of Texas NO. 01-02-00314-CR NO. 01-02-00315-CR MICHAEL JOSEPH LILLEY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause Nos. 742879 & 886054 MEMORANDUM OPINION Appellant, Michael Joseph Lilley, pleaded guilty to the felony offense of driving while intoxicated (DWI) and true to a motion to revoke community supervision on another felony DWI offense, pursuant to an agreed recommendation with the State. Punishment was assessed at five years’ confinement in prison, to run concurrently. In his first two points of error, appellant challenges the denial of his motion to recuse the trial judge, who, appellant contends, was biased and deprived appellant of due process of law. In his third point of error, appellant claims his plea was not voluntary. We affirm.Background In 1997, appellant was convicted of DWI in cause number 742879 and placed on five years’ community supervision with conditions that he pay a $500 fine, serve 10 days in jail, and participate in a treatment program. Thereafter, the State filed a motion to revoke appellant’s community supervision based on alleged violations of the terms and conditions of the community supervision. The trial court did not revoke appellant’s community supervision, but instead amended the terms of appellant’s community supervision to include 90 days’ confinement and additional community service. On December 18, 2001, appellant was indicted for felony DWI in cause number 886054. Appellant filed a motion to recuse the trial judge in both cases. Appellant’s motion alleged the trial court judge refused to consider the entire range of punishment because the judge “did not like appellant.” It also alleged that appellant’s former trial attorney told appellant that he was a friend of the judge, who would impose the maximum sentence if appellant were to fire the attorney. A recusal hearing was held before the Regional Administrative Judge, the Honorable Olen Underwood, who heard testimony from appellant’s father and sister and appellant’s former trial counsel. After Judge Underwood denied the motion, as “not supported by the evidence,” appellant pleaded guilty to DWI and true to the motion to revoke community supervision. The court granted appellant permission to appeal rulings on any written motion prior to the plea. Motion to RecuseIn his first and second points of error, appellant asserts that his motion to recuse the trial judge should have been granted because the trial judge would not consider the full range of punishment, thereby depriving him of due process. A challenge to the denial of a motion to recuse is reviewed for abuse of discretion. See Tex. R. Civ. P. 18a(f). If a trial court’s recusal rulings fall within the zone of reasonable disagreement, an appellate court should not reverse. Wesbrook v. State, 29 S.W.3d 103, 120-21 (Tex. Crim. App. 2000). The fact-finder judges the credibility of witnesses, and may believe all, none, or part of a witness’s testimony and disregard the remainder. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Recusal is appropriate if the movant has provided enough facts to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial court, but only when the bias is of such a nature and extent as to deny the movant due process of law. Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992). A judge’s bias is improper if it stems from an extrajudicial source resulting in an opinion on the merits on some basis other than what the judge learned from participating in the case. Id. at 306. At the recusal hearing, appellant’s sister testified to the same information contained in appellant’s motion to recuse. Appellant’s sister and father testified that the judge rejected two plea bargain agreements between the defendant and the State. However, appellant’s former trial attorney testified that he had no reason to question the judge’s impartiality and denied the allegations contained in appellant’s motion to recuse. Appellant’s former trial counsel explained that, because of the number of technical violations of appellant’s community supervision, the judge stated that she would not consider reinstatement with rehabilitation and that appellant should work out his case with the State. According to the attorney, the judge’s opinion was based on appellant’s performance on community supervision. Judge Underwood, as the sole trier of fact, was entitled to resolve conflicts in this testimony. See Sharp, 707 S.W.2d at 614. Judge Underwood heard the testimony and evaluated the credibility of the witnesses. We hold that Judge Underwood did not abuse his discretion by denying appellant’s motion to recuse the trial judge and therefore hold that appellant has failed to establish any due process violations. We overrule appellant’s first and second points of error. Voluntariness of Plea In his third point of error, appellant contends that his plea of guilty was not entered into freely and voluntarily because the plea was made as a result of compulsion and duress. When the record reflects that a trial court properly admonished the defendant, a prima facie showing of voluntariness and knowledge arises. Hancock v. State, 955 S.W.2d 369, 371 (Tex. App.—San Antonio 1997, no pet.). Here, appellant received the statutorily-mandated admonishments from the trial court. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2003). Furthermore, appellant does not include any citations to the record to support his allegation that he was under “compulsion or duress” when he pleaded guilty, and there was no testimony regarding this issue at appellant’s motion for new trial. Thus, appellant has not shown that his plea was made under compulsion or duress and, therefore, has not rebutted the presumption that the plea was voluntarily made. We overrule appellant’s third point of error. ConclusionWe affirm the judgment of the trial court. Elsa Alcala Justice Panel consists of Justices Hedges, Jennings, and Alcala. Do not publish. Tex. R. App. P. 47.2(b).