Ex Parte Howard , 1985 Tex. Crim. App. LEXIS 1234 ( 1985 )

OPINION

W.C. DAVIS, Judge.

This is an application for post-conviction writ of habeas corpus pursuant to Art. 11.07, V.A.C.C.P.

Applicant was convicted of burglary of a building. Pursuant to a plea bargain, adjudication was deferred and applicant was placed on probation. During the probation, applicant was accused of aggravated robbery. Pursuant to a second plea bargain, applicant pled “guilty” to the robbery and “true” to the allegations in the State’s motion to revoke the unadjudicated probation. No punishment recommendation was to be made by the State, but the terms of the two offenses were to run concurrently.¹ The court assessed punishment in each case at 12 years’ confinement.

Applicant brings us four contentions related to the burglary conviction, but we granted leave to file in order to address only two of them.

Applicant contends that he was denied the right to appeal the judgment of conviction for burglary; and so he was. Applicant pled guilty in the cause pursuant to a plea bargain;² his right to appeal as thus limited to those complaints brought forth by pre-trial motions of which there were none, and those matters for which the court gave its permission to appeal. Art. 44.02, V.A.C.C.P. To the extent he wishes to appeal the decision to proceed to adjudication, he is barred by Art. 42.12, V.A.C. C.P., Sec. 3d(b). That section provides that, upon proceeding to adjudication, appeal proceeds as if adjudication had not been deferred. If adjudication had not been deferred, applicant would have had to seek permission to appeal in the instant case. The court would have been authorized to deny the right to appeal; we see no reason it could not do so in the instant case.

Applicant’s final contention is that the use of a magistrate to accept applicant’s plea to the motion seeking adjudication, and his judicial confession to the probation violations alleged was in violation of Art. 1918c, V.A.T.S., Sec. 4(b), which states:

In no event may a judge refer to a magistrate a criminal case permitting the magistrate to preside over a trial on the merits, either with or without a jury.

Art. 1918c, V.A.T.S., Sec. 4(a) provides:

The judge of a court having a magistrate appointed as provided by this Act may refer to the magistrate any criminal case for proceedings involving:

(1) negotiated pleas of guilty before the court;

(2) bond forfeitures;

(3) pretrial motions;

(4) post conviction writs of habeas corpus;

(5) conducting examining trials;

(6) any other matters that the judge deems necessary and proper, except as otherwise provided by Subsection (b) of this section.

Sections 5(a)-5(c) and 7(a)-7(c) of the same article provide:

5. (a) Except as provided by Subsections (b) and (c) of this section, a magistrate to whom a case is referred may:

(1) conduct hearings;

(2) hear evidence;

(3) compel the production of relevant evidence;

(4) rule on the admissibility of evidence;

(5) issue summons for the appearance of witnesses;

(6) examine witnesses;

(7) swear witnesses for the hearing;

(8) make findings of fact on the evidence;

(9) formulate conclusions of law;

(10) rule on pretrial motions;

(11) recommend the rulings, orders, or judgment to be made in the case;

(12) regulate all proceedings in a hearing before the magistrates; and

(13) do all acts and take all measures necessary and proper for the efficient performance of the duties required in the order of referral.

(b) The order of referral may limit the powers of the magistrate and direct the magistrate to report only on specific issues, do particular acts, or receive and report on evidence only. The order may set the time and place for the hearing, prescribe a closing date for the hearing, and provide for a date for the filing of the magistrate’s findings.

(c) A magistrate appointed under this Act to whom a case is referred may not enter a ruling on any issue of law or fact of which the determination thereon could result in dismissal or require the dismissal of a pending criminal prosecution. A magistrate may, however, make findings, conclusions, and recommendations on such issues, within the scope of the order of referral.

7. (a) On the conclusion of the proceedings, the magistrate shall transmit to the referring court all papers relating to the cases involved, together with the findings, conclusions, orders, recommendations, or other actions taken.

(b) The referring court may modify, correct, reject, or reverse any action taken by the magistrate, or recommit it for further information, as the court may deem proper and necessary in the particular circumstances of the case.

(c) If no modification, correction, rejection, reversal, or recommittal is made by the referring court, the actions taken by the magistrate become the decree of the court.

In the instant case, the magistrate took applicant’s plea and judicial confession, and proposed a judgment which was adopted by the court pursuant to Sec. 7(c).

Applicant insists that the magistrate’s actions in receiving his plea and confession were tantamount to presiding over a trial upon the merits, which is specifically prohibited by Sec. 4(b). But what the magistrate did was no more than would have been done in accepting a negotiated plea before the court pursuant to Sec. 4(a)(1), and we hold that a hearing to proceed to adjudication is one of the other matters contemplated by Sec. 4(a)(6). Where, as here, the judgment of the court is an independent action of the court and the magistrate’s role is limited to advisory and fact-finding functions as provided by Art. 1918c, we see no error in permitting the magistrate to preside over the hearing to proceed to adjudication.

The relief sought is denied.

ONION, P.J., dissents.

1 . The bargain, as understood by the parties and the court, effectively limited the maximum time for the aggravated robbery conviction (normally life or 99 years) to the 20 year maximum for burglary of a building, a second-degree felony.

2 . It should be kept in mind that his plea of "true” to the allegations of the motion to proceed to adjudication was also made pursuant to a plea bargain.