Metts, Anthony Austin, PD-1055-15

In 2004 Metts pled guilty to two counts of sexual assault of a child and received deferred adjudication probation and fines; the plea hearings included written waivers of jury trial signed in March 2004.
At the March 2004 pre-plea hearing Robin Malone Darr, then an assistant district attorney, signed the State’s written jury-waiver forms and appeared at the hearing; the plea was accepted by Judge Willie DuBose.
Darr later became the presiding judge of the 385th District Court. In May 2013 the State moved to adjudicate Metts’s guilt; Judge Darr presided over the contested adjudication/revocation hearing.
At the May 2013 hearing Darr found probation violations true, adjudicated Metts guilty, and assessed concurrent ten-year prison sentences in each cause.
Metts appealed, arguing Darr was constitutionally/statutorily disqualified because she previously acted as counsel for the State (by signing/approving the jury waivers), and thus the judgments are void; the Eleventh Court of Appeals affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a judge is disqualified where, years earlier, she signed the State’s written jury-waiver and appeared at the plea hearing as an ADA	Metts: Darr acted as counsel for the State when she signed/approved the jury-waiver and participated in the plea, so she was disqualified under Tex. Const. art. V, §11 and art. 30.01, making the adjudications void	State/Eleventh Ct: Darr’s participation was perfunctory (a brief appearance and handing/signing a form); she did not ‘‘actively participate’’ in the conviction, so she was not counsel in the case	Court of Appeals: Held Darr’s involvement was perfunctory and insufficient to establish she was counsel in the case; she was not disqualified and judgments stand
Whether waiver-of-jury consent by a prosecutor is a critical stage that renders later judicial participation void	Metts: The prosecutor’s written consent is required by statute and is a critical, non-perfunctory act—especially here because the State’s waiver enabled deferred adjudication not otherwise available	State: Emphasized limited, clerical nature of Darr’s act and that other prosecutors handled the case otherwise	Court of Appeals: Rejected Metts’ contention; treated the signature/brief appearance as non-disqualifying perfunctory conduct

Ex parte Miller, 696 S.W.2d 908 (Tex. Crim. App. 1985) (judge who signed jury waiver and other prosecution documents was disqualified from later revocation proceeding)
Ex parte McDonald, 469 S.W.2d 173 (Tex. Crim. App. 1971) (prior prosecutor who revoked probation rendered subsequent adjudication void)
Whitehead v. State, 273 S.W.3d 285 (Tex. Crim. App. 2008) (disqualification under Article 30.01 renders judgment a nullity and may be raised on appeal)
Gamez v. State, 737 S.W.2d 315 (Tex. Crim. App. 1987) (rubber-stamped or perfunctory acts by a prosecutor do not constitute being "counsel in the case")
Lee v. State, 555 S.W.2d 121 (Tex. Crim. App. 1977) (active prosecutorial participation such as reviewing and recommending punishment can disqualify a later judge)
Greer v. State, 999 S.W.2d 484 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd) (prior prosecutor in same court disqualified from later revocation; modification order void)