Opinion
NO. 14-18-00918-CR NO. 14-18-00919-CR
09-01-2020
GARY DAVIS GARRETSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 399th Judicial District Court Bexar County, Texas
Trial Court Cause No. 2017-CR-7980 and No. 2017-CR-12813
MEMORANDUM OPINION
Appellant Gary Davis Garretson appeals the trial court's judgment revoking his community supervision for burglary of a building with intent to commit theft and possession of a controlled substance, methamphetamine, PG1, 1 to 4 grams. Appellant raises three issues in this direct appeal. We reverse and remand.
A state jail felony in trial court cause number 2017-CR-12813 is being appealed as 14-18-00918-CR. The indictment contains Count IA and B. Count IA is intent to commit theft. Count 1B is attempted to commit and committed theft.
A third-degree felony in trial court cause number 2017-CR-7980 is being appealed as 14-18-00919-CR.
The Texas Supreme Court ordered the Fourth Court of Appeals to transfer this appeal to the Fourteenth Court of Appeals. We must therefore decide the case in accordance with the precedent of the Fourth Court of Appeals if our decisions otherwise would have been inconsistent with that court's precedent. See Tex. R. App. P. 41.3.
I. BACKGROUND
On April 23, 2017, appellant was arrested in San Antonio, Bexar County, Texas and subsequently indicted for possession of a controlled substance, methamphetamine, PG1, 1 to 4 grams. The following month, on May 9, 2017, appellant was arrested again in San Antonio and indicted for burglary of a building with intent to commit theft.
On February 22, 2018, appellant pled guilty to both charges pursuant to a plea bargain in which he received 7 years, probated to community supervision for 5 years, with the sentences running concurrently. Appellant did not file a direct appeal of his convictions.
The trial court's certification of defendant's right of appeal in both cases denotes the case "is a plea-bargain case, and the defendant has NO right of appeal."
On May 13, 2018, in Bexar County, appellant committed the offense of felon in possession of a firearm. Consequently, the State moved to revoke appellant's community supervision (adult probation) for violating the terms of his probation.
On August 1, 2018, the trial court conducted a revocation hearing. Appellant's probation in both cases was revoked after pleading "true" to the new criminal charge (felon in possession) pursuant to an agreement with the State. Pursuant to an agreed recommendation, the trial court assessed punishment at 5 years' imprisonment in both cases running concurrently. Appellant made no complaint at the revocation hearing about his sentence in the burglary case exceeding the maximum statutory punishment allowed.
One week later, on August 8, 2018, appellant filed a motion to withdraw his plea and for a new trial. As grounds for a new trial, appellant alleged he was denied effective assistance of counsel at the time of his original plea (i.e., February 2018). According to appellant, he was denied effective assistance of counsel at that time due to legal advice leading him to agree to an illegal sentence. Appellant asserts he agreed to a sentence of 7 years in prison for a state jail felony (burglary of a building) which exceeds the maximum punishment range. Appellant alleges that his decision to plea on February 22, 2018 could not have been knowingly or intelligently entered.
Tex. Pen. Code § 12.35(a) ("Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.").
On August 31, 2018, a visiting trial judge heard and denied appellant's motion for new trial. The visiting judge recognized that the underlying sentence in the burglary conviction exceeded the maximum statutory punishment range. In the middle of the hearing, the visiting judge took a court recess and consulted with the District Attorney's Office regarding his jurisdiction to address the underlying conviction, which invited an objection by defense counsel for his having an ex parte communication. At the conclusion of the hearing, over defense counsel's objection, the visiting trial judge orally issued a nunc pro tunc order to reform the February 22, 2018, judgment of conviction in the burglary case to a 2-year sentence.
Appellant timely filed a notice of appeal in both cases. Thereafter, we consolidated the appeals.
II. ANALYSIS
In his brief, appellant raises the following three issues: • The trial court committed error is not subject to a harm analysis when [visiting Judge] meted out an illegal five-year incarceration sentence after revoking the Appellant's probation since the sentence was outside of the statutory range of punishment for a state jail felony. • The trial court committed structural error because when a plea bargain is unenforceable it necessitates the total withdrawal of the total plea bargain thus the nunc pro tunc administered by the judge was void. • The trial court denied appellant his right to a fair trial, a neutral and detached magistrate, after the [visiting trial] judge engaged in an admitted purposeful ex parte communication with the District Attorney's Office for guidance in making his decision in violation of the Fifth and Sixth Amendments to the U.S. Constitution.
The State argues that this case should be dismissed for lack of jurisdiction, asserting that this direct appeal is a collateral attack on a judgment of conviction in an appeal from a revocation of probation, which is normally prohibited. The State contends that appellant has failed to meet the void judgment exception concerning an illegal sentence as set forth in the Wright/Parrott line of cases. Alternatively, the State maintains that this court should sever the plea bargain agreement and only reverse and remand the burglary of a building case but affirm the judgment in the possession of a controlled substance case because appellant cannot meet his burden to show that this plea was a "package deal."
See Wright v. State, 506 S.W.3d 478 (Tex. Crim. App. 2016); Ex parte Parrott, 396 S.W.3d 531, 534 (Tex. Crim. App. 2013).
A. Jurisdiction
Before we can address appellant's issues, we must determine whether this court has jurisdiction.
1. Collateral attack on initial sentence
Although appellant is appealing from the revocation of his community supervision, he is not challenging the ground for revocation (i.e., the felon in possession charge). Rather, he is challenging one of the original judgments assessing punishment (i.e., burglary of a building with intent to commit theft). "In the 'regular' community supervision context, sentence is assessed when a defendant is placed on probation." Wright, 506 S.W.3d at 481 & n. 20. An original judgment placing a defendant on community supervision generally must be appealed, if at all, within the appellate time periods following rendition of that judgment. Martinez v. State, 194 S.W.3d 699, 701 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001)). "[A] challenge to the initial assessment of sentence in an appeal from the later revocation is a collateral attack on the assessment of sentence" and "is not allowed." Wright, 506 S.W.3d at 481 & n. 21.
Wright, 506 S.W.3d at 481 n. 20 (citing Tex. Code Crim. Proc. art. 42.12, §§ 2(B) (defining regular community supervision to mean the placement of a defendant under programs and sanctions for a period during which "a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part"), § 23 (on revocation of regular community supervision, "the judge may proceed to dispose of the case as if there had been no community supervision" or may reduce the term of confinement if determined to be in the best interest of society and the defendant)).
The appellate window to file a direct challenge to appellant's February 2018 plea had long expired by the time his revocation hearing took place in August 2018.
2. Void judgment exception
However, there are exceptions to this rule, including the "void judgment exception." Whillhite v. State, No. PD-0095-20, 2020 WL 3067568, at *1 (Tex. Crim. App. June 10, 2020) (citing Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001)). Under the void judgment exception, the claimed defect is one that rendered the original judgment of conviction void or a nullity. Whillhite, 2020 WL 3067568, at *1; Wright, 506 S.W.3d at 481.
The other vehicle for such a challenge would be a habeas corpus proceeding under article 11.07. See Tex. Code Crim. Proc. art. 11.07; Wright, 506 S.W.3d at 481 (filing a habeas is the other exception).
The Court of Criminal Appeals has identified at least four situations in which a judgment might be void. Whillhite, 2020 WL 3067568, at *1; Smith v. State, 309 S.W.3d 10, 17 (Tex. Crim. App. 2010); Martinez, 194 S.W.3d at 701. The very nearly exclusive list of situations in which the judgment of conviction is void are those in which: (1) the document purporting to be a charging instrument (i.e., indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived. Smith v. State, 309 S.W.3d at 17-18; Martinez, 194 S.W.3d at 701-02 (citing Nix, 65 S.W.3d at 668). "While we hesitate to call this an exclusive list, it is very nearly so." Smith, 309 S.W.3d at 18.
3. Illegal sentence
However, there is arguably another scenario that may render a judgment of conviction void: an illegal sentence. An illegal sentence is one that is not authorized by law. See Ex parte Parrott, 396 S.W.3d at 534. A sentence outside the range of punishment authorized by law is considered illegal. Id.; Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).
Whether an illegal sentence falls within the void judgment exception is a matter of first impression for the Fourth Court of Appeals and this court.
Although an illegal sentence is not included in the list of situations in which a judgment is void, an argument that a sentence is illegal may be raised at any time. See Wright, 506 S.W.3d at 482 (assuming for the sake of argument that an illegal sentence could render a conviction void but disposing of the appeal on other grounds); Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006) ("[T]here has never been anything in Texas law that prevented any court with jurisdiction over a criminal case from noticing and correcting an illegal sentence," no matter when or how the relief was sought.); Garcia v. State, 549 S.W.3d 335, 341 (Tex. App.—Eastland 2018, pet. ref'd) (holding appellate court had jurisdiction to hear defendant's complaint of an illegal sentence under the void judgment exception to the general prohibition against collateral attacks on an original conviction in appeals from a revocation). Further, the Court of Criminal Appeals has recently found that an arguable ground for relief was presented "if the trial court had no subject matter jurisdiction over appellant's prosecution under section 33.021(b) [of the Texas Penal Code] because the statute had been declared unconstitutional, then appellant's conviction was void and he could raise the issue on appeal from the revocation proceedings." Whillhite, 2020 WL 3067568, at *1 (allowing direct appeal of revocation proceedings that attacked underlying conviction on statute that was declared unconstitutional); see also Ex parte Rae, No. PD—0734—17, 2018 WL 1406648, at *1 (Tex. Crim. App. Mar. 21, 2018) (remanding in habeas proceeding the case to the trial court to reform the judgment to reflect misdemeanor DWI instead of felony DWI and to conduct a new punishment hearing).
Here, the record shows that appellant was indicted for burglary of a building with intent to commit theft in cause number 2017-CR-12813. Burglary of a building is a state jail felony, punishable by confinement for not more than two years or less than 180 days and a fine not to exceed $10,000. See Tex. Penal Code §§ 12.35 (a)-(b), 30.02(c)(1). The sentence appellant originally was assessed, 7 years' incarceration, was outside the authorized range of punishment. During his original plea proceeding on February 22, 2018, the following exchange occurred on the record:
THE COURT: How do you plead to the indictment in 17-CR -7980? How do you plead?
THE DEFENDANT: Guilty.
THE COURT: How do you plead to the indictment in 17-CR-12813?
THE DEFENDANT: Guilty.
* * *
THE COURT: . . . What's the agreement?
[THE STATE]: Judge, the agreement is a -
[DEFENSE COUNSEL]: Seven over seven, third degree.
* * *
THE COURT: Seven years TDC and - -
[THE STATE]: Yes, Judge. That's right. Seven years TDC, a $1500 fine, no application for deferred, recommending community supervision. We're recommending seven years . . . . We will be taking into consideration 2017-CR-7979. And this will run concurrent with 2017-CR-12813.
THE COURT: Is that your understanding of the agreement?
THE DEFENDANT: Yes, Your Honor.
* * *
THE COURT: I'm going to go ahead and follow the agreement, everything that the State recited on these cases. I'm going to go ahead and follow every condition that they recommended too on this: Seven years TDC, probated for seven. . . .
* * *
THE COURT: Okay. I'm going to place you on five years community supervision instead of seven, but you should get it done in that time or not, or you're going to be looking at prison, okay?
It appears that counsel for the State and defense counsel as well as the trial court were focused on the overall agreement and mistakenly disregarded the maximum degree of punishment on the burglary of a habitation with intent to commit theft charge. Thus, on the record before us, appellant has shown that his sentence to serve 7 years in prison for the state jail felony of burglary of a habitation is outside the statutory punishment range and is therefore illegal. Mizell, 119 S.W.3d at 806. In this circumstance, the appropriate remedy is to vacate the judgments in which the trial court revoked appellant's community supervision as well as the original judgments of conviction in both cases (as explained below). Garcia, 549 S.W.3d at 344-45.
Appellant's first issue is sustained.
4. Appellant's harm from illegal sentence
Appellant asserts the trial court committed error that is not subject to a harm analysis because the visiting trial judge "meted out an illegal five-year incarceration sentence after revoking the appellant's probation since the sentence was outside of the statutory range of punishment for a state jail felony."
The State maintains that when considering whether an illegal sentence could render an original conviction void, the reviewing court must determine if appellant suffered harm from the illegal sentence he received. The State contends that the record is silent as to whether appellant has any prior convictions that could be used to enhance appellant's state jail felony to a third- or second-degree felony. The State further contends it is appellant's burden to demonstrate that there are no prior convictions that could be used to enhance his state jail felony sentence thus rendering the illegal sentence legal.
In Wright, the Court of Criminal Appeal explained that, in a direct appeal, for a defendant to prevail in a claim that his sentence is illegal, the defendant cannot rely solely on the direct appeal record as proof there are no other convictions that would support the punishment range within which he was sentenced. 506 S.W.3d at 484 (Alcala, J., concurring opinion in which Johnson, J., joined) (discussing majority holding and disagreeing with its application of habeas law into a direct appeal because of the procedural differences between the procedures); Ex parte Parrott, 396 S.W.3d at 537-38 (holding that, in order to receive habeas relief due to an illegal sentence, an applicant must show both a cognizable irregularity and harm).
In Ex parte Parrott, the court found that the applicant was not harmed by his illegal sentence because the record revealed that the applicant's punishment range was supported by his actual criminal history (which revealed multiple, alternative, prior convictions that supported his enhanced sentence), admonishments, and plea bargain. 396 S.W.3d at 536, 538.
Contrary to the State's assertion, the record supports that appellant's sentence is illegal because it exceeds the statutory punishment range. In the original plea proceeding on February 22, 2018, the trial court asked appellant whether he had ever been to prison, and he responded "no." The trial court next asked appellant whether he had ever been to state jail before, and the record reflects appellant shook his head. The trial court went on to ask if he had been on felony probation before, and his defense counsel responded that he had "just been on juvenile probation before." After the trial court inquiring and learning appellant was 23 years old, defense counsel advised the court that "[h]e successfully completed the juvenile probation. Oh, yes, a long time ago, when he was 13." In addition to the defendant's in-court testimony, a review of the record in this court also demonstrates no mention of prior convictions in either the indictment, plea papers or revocation proceedings. Because the record demonstrates there were no prior convictions that could have been used to enhance the appellant's state jail felony to a third- or second-degree felony, appellant has shown harm by his illegal sentence that included punishment of 7 years' imprisonment because it exceeded the maximum statutory punishment.
5. Nunc pro tunc order
In his second issue, appellant argues that because his plea bargain is unenforceable it necessitates the withdrawal of the entire plea bargain (both charges) and the nunc pro tunc administered by the visiting judge was void.
The purpose of a nunc pro tunc judgment is to provide a method for trial courts to correct the record when there is a discrepancy between the judgment as pronounced in court and the judgment reflected in the record. Blanton v. State, 369 S.W.3d 894, 897-98 (Tex. Crim. App. 2012). The corrections must reflect the judgment that was actually rendered but that for some reason was not properly entered into the record at the time of the judgment. Id. at 898. Corrections to the record are limited to clerical errors and are not appropriate for errors involving judicial reasoning. Collins v. State, 240 S.W.3d 925, 929 (Tex. Crim. App. 2007). "Thus, before a judgment nunc pro tunc may be entered, there must be proof in the record that the proposed judgment was actually rendered or pronounced at an earlier time." Wilson v. State, 677 S.W.2d 518, 521 (Tex. Crim. App. 1984). The classification of an error as clerical or judicial is a question of law. Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988).
A motion to revoke community supervision was filed and appellant's probation was revoked following his plea of true to the new offense alleged in the motion. Appellant was orally sentenced by the trial judge to 5 years' incarceration on both cases—the third-degree felony possession case and the state jail felony burglary case. Appellant filed a motion to withdraw the plea/motion for new trial asserting the plea was involuntary because he was provided ineffective assistance of counsel by agreeing to an illegal sentence. At a hearing on appellant's motion, defense counsel argued the entire plea bargain is unenforceable and the proper remedy is to put the parties back to where they started before the plea. The visiting trial judge questioned this remedy and admonished appellant as follows:
THE COURT: You realize that if I go along with what you're arguing, he's not only going to have a felony in possession of a weapon, he's going to be looking at two more cases.
[DEFENSE COUNSEL]: I understand, your Honor.
THE COURT: And, you know, what I'm saying -- and you should be listening, Mr. Garretson, because if you get what your lawyer is asking for, you are going to get a whole lot more time in prison the chances are. They've already gotten rid of your -- the new case as part of the deal when you got revoked.
What I'm saying is, I don't know if you really want this. I think you should consider that before you move forward because you're going to have a third-degree felony, another third-degree felony -- the felon in possession of a weapon, and you're going to have a state jail felony, okay? That's three different cases all of which can be stacked, and you could very well end up with significantly more time to do than you have right now. And if you want to talk to your lawyer, I'd be happy to give you the time. . . .
* * *
THE COURT: . . . I mean, I think [you] should -- you do what you want, but I think you should probably have a discussion with your client before you move forward on this. You might win on the law, but you are going to lose on the facts.At the hearing, the visiting trial judge further stated:
[DEFENSE COUNSEL]: Well, I've conferred with him. He understands the risks.
* * *
THE COURT: Just answer my question: How was the felon in possession of a weapon disposed of?
[DEFENSE COUNSEL]: It was rejected in exchange for his plea of true.
THE COURT: Okay. So it's going to get resurrected.
[DEFENSE COUNSEL]: Yes, I've advised him of that.
THE COURT: . . . In this case, you have a state jail felony where the person pled to seven and you have a . . . third-degree felony where he pled to seven. He got the benefit of less than ten on the second case. He over pled on the first case.The visiting trial judge ordered the judgment of conviction on the burglary case to reflect the sentence is two years. Defense counsel objected to this action by the visiting trial judge, arguing appellant was being sentenced to something not pursuant to a plea agreement. Defense counsel's objection to the sentence on the state jail felony case was overruled.
Now, what I am prepared to do and I will do at this time is -- to be clear, a nunc pro tunc subsequent to the revocations in the burglary of a building . . . .
* * *
[THE COURT]: The Judge -- I don't know yet, but if he ordered a sentence of five years can't be done; it's an illegal sentence. I will nunc pro tunc the judgment on the burglary on the building, which is a state jail felony, to two years, which is the maximum for a state jail felony.
As set forth above, the visiting trial judge did more than correct a clerical error. Rather, the judge, after the fact, modified a plea bargain by using a nunc pro tunc order to reflect what the visiting judge considers the correct sentence. This error involved judicial reasoning; hence, the use of a nunc pro tunc order to reform the judgment of revocation and conviction in the burglary case was improper. Collins, 240 S.W.3d at 929. Both the original and reformed judgment of conviction as well as the judgment of revocation should be vacated.
6. Plea Agreement
Appellant argues that both judgments must be vacated and the appellant returned to the position he was in prior to the plea bargain on both cases. Appellant asserts he entered into a negotiated plea and that if he would have been aware that one of the two cases was capped at 2 years' incarceration, he would have rejected the plea offer and he would have changed the negotiation tactics utilized by his attorney in obtaining a negotiated plea.
Arguing in the alternative, the State contends we should vacate only the judgment in the trial court cause number 2017-CR-12813 (burglary of a building). The State argues that we should affirm the judgment in 2017-CR-7980 (possession of a controlled substance).
Plea bargains are viewed as contractual agreements between the state and defendant; thus, we apply general contract-law principles. Ex parte Cox, 482 S.W.3d at 116. "However, '[a]lthough contractual concepts apply to plea bargains, such should not be strictly enforced to the detriment of due process.' " Id. (quoting Ex parte Adkins, 767 S.W.2d 809, 810 (Tex. Crim. App. 1989)).
The Court of Criminal Appeals has held that, when a defendant who has entered a negotiated plea of guilty challenges his conviction and is successful, the appropriate remedy, if possible, is specific performance of the plea. Ex parte Cox, 482 S.W.3d at 117-18 (citing Shannon v. State, 708 S.W.2d 850, 851 (Tex. Crim. App. 1986)). "If specific performance is not available, then the appropriate remedy is withdrawal of the plea, with both parties returning to their original positions." Id. at 118. Returning the parties to their original positions means a return to the positions that the parties held before the plea agreement was made. Id. (citing Ex parte Rich, 194 S.W.3d 508, 514-15 (Tex. Crim. App. 2006); Shannon, 708 S.W.3d at 851 ("the proper remedy is to allow Applicant to withdraw his plea and remand the case to the trial court, putting both parties back in their original positions before they entered into the plea bargain."). In State v. Moore, the Court of Criminal Appeals applied the same remedy:
Ordinarily, when one side fails to abide by the plea agreement, two potential remedies exist. First, pertaining mainly to the defense, a plea may be withdrawn. Second, the non-breaching party may demand specific performance of the remainder of the plea agreement. The application of these remedies for breach of a plea agreement has been illustrated in multiple holdings.240 S.W.3d 248, 251-52 (Tex. Crim. App. 2007). In Ex parte De Leon, the Court of Criminal Appeals reaffirmed Shannon, holding that the "proper remedy is to return both parties to their original pre-plea positions." 400 S.W.3d 83, 90-91 (Tex. Crim. App. 2013). However, in some instances the State may "waive an invalid portion of the judgment and retain the remainder of the plea agreement." Ex parte Cox, 482 S.W.3d at 418 (citing Ervin v. State, 991 S.W.2d 804, 816 (Tex. Crim. App. 1999)).
In this case, the State argues the plea agreement is severable. The State suggests that we vacate only the illegal portion of the plea agreement (i.e., the burglary of a building conviction) and maintain the remainder of the plea agreement (i.e., the possession conviction). In support of its position, the State argues that this court does not have a sufficient record to decide whether this plea agreement was a "package deal."
In Ex parte Cox, the Court of Criminal Appeals found the plea agreement in a multi-count indictment was a "package deal" and applicant's successful challenge to his conviction for one count negated the entire plea bargain, and the parties must be returned to their original positions. See 482 S.W.3d at 119. The court's concurrence in Ex parte Cox is instructive as to "what makes a plea bargain a 'package deal'":
I would hold, first, that a defendant's pleas to multiple counts or causes is a package deal when each plea is related to and conditioned on the acceptance of the plea recommendations in the other counts or causes. When the plea offer is "all or nothing," I would hold that the parties have entered into a package deal. I agree with the Court that there was a package deal in this case.482 S.W.3d at 120 (Keller, P.J., concurring opinion in which Keasler and Hervey, JJ., joined) (internal citations omitted).
As to the larger question, there are two variables that affect what should happen when a defendant is successful in invalidating part of the plea bargain. (1) If he establishes that the plea was involuntary, then the contract was never valid, and the entire plea should be set aside. To show an involuntary plea, the defendant must establish that, absent the invalidity, he would not have pled guilty but would have insisted on a trial. (2) If the plea was voluntary, but a defendant shows that he is entitled to get out of one part of the plea bargain, he gives up his right to hold the State to its end of the plea bargain: the State is entitled to have the entire plea undone. But the State has another option. If it decides it would rather give up the right to have the entire plea undone and enforce the remaining part of the contract, it should be able to do that instead.
Here, appellant pled guilty in two unrelated cases pursuant to a plea agreement. The State contends that the record does not reveal the thought processes and motivations for the plea agreement in question to discern whether it was a package "all or nothing" deal. Appellant asserts, however, that his plea was involuntary because he was provided ineffective assistance of counsel by agreeing to an illegal sentence. We agree. As such, the plea agreement was never valid, and the entire plea should be set aside. The due process protections provided to appellant require that all promises made in the plea bargain be fulfilled. See Ex parte Cox, 482 S.W.3d at 117. If, the promise cannot be kept, as here, the plea is rendered involuntary and both parties must be returned to their original positions. See id.
Appellant's second issue is sustained.
B. Fair Trial
In his third issue, appellant alleges that the visiting trial judge denied his right to a fair trial by a neutral and detached magistrate, after the visiting judge engaged in an admitted purposeful ex parte communication with the District Attorney's Office for guidance in making his decision in violation of the Fifth And Sixth Amendments to the U.S. Constitution. Appellant requests that his cases be remanded to a different trial court. The State offers no response to this issue in its brief.
As reflected in the reporter's record, at the hearing on appellant's motion to withdraw plea/motion for new trial, the visiting trial judge questioned whether the court had jurisdiction to grant a motion for new trial as it related to appellant's February 2018 plea. He expressed his concern as follows:
I'm not sure it's up to me to make that determination. It may be that the only alternative you have is to appeal. You know, I don't know. I'm going to have to look at this.
Go ahead and have a seat. It's going to take some time. If you got other things to go do, go do them because I'm going to have to read this case and do some of my own research before I make a
decision.
After a recess, the visiting trial judge went back on the record and stated that he had consulted with members of the District Attorney's Office and confirmed that he does not have jurisdiction. Defense counsel objected to the visiting judge communicating ex parte with the District Attorney's Office regarding appellant's case. The visiting trial judge disagreed with defense counsel's characterization of the consultation as ex parte, and stated:
THE COURT: I can contact anybody I want to talk about a case or researching the law. I asked for the assistance of the chief of the appellate section of the Bexar County District Attorney's Office, okay . . . .
As set forth above, we have determined that appellant should be placed back in the position he was before entering the pleas in February 2018. Thus, without deciding the merits of appellant's third issue, we direct the case be remanded to the trial court to be heard by the trial judge assigned to that judicial district court.
Appellant's third issue is overruled.
III. CONCLUSION
We reverse and remand both cases to the trial court for proceedings consistent with this opinion.
/s/ Margaret "Meg" Poissant
Justice Panel consists of Justices Wise, Jewell and Poissant. (Jewell, J., concurring in the judgment without opinion). Do Not Publish - Tex. R. App. P. 47.2(b)