Texas - Recuse the Criminal Trial Judge #2

Texas - Recuse the Criminal Trial Judge #2

(Court of Appeals Jurisprudence)

YouKnowItAll.com

Suitability

This course is for serious students of the law. Interest is more important than experience.

Scope

This course includes cases decided through 2003. This is one course in a cluster of courses on recusation, objection, and disqualification of judges in Texas state courts. We recommend that you take the introductory course first, or at least that portion of the introductory course that covers the difference between recusation, objection, and disqualification. This is one of two courses on criminal court recusation. The other course covers the Court of Criminal Appeals opinions. The Court of Criminal Appeals is the highest Texas criminal court. This course covers the intermediate level courts of appeals opinions. It is best to take both courses. The court of criminal appeals has not handled recusation well. Sometimes the courts of appeals have done a better job. The courts of appeals handle civil and criminal cases. The recusation rules are the same, but they are applied differently in civil and criminal cases. In Texas civil cases, the litigant's right are taken more seriously than in Texas criminal cases, at least with respect to recusation.[1] The courts of appeals handles both civil and criminal cases and sometimes give the criminal defendant the higher level of due process that is afforded the civil litigant. Because of the difference between civil and criminal cases, a criminal lawyer who chooses to argue that the civil due process must be given to criminal defendants should take the civil recusation courses and note the differences. One of you might want to make a state or Federal case out of that difference. Others may wish to take the civil courses in order to know how the law is applied in civil cases so you better understand the application in criminal cases.

Cases are in chronological order so you can see the development of the law. You may wish to take the Court of Criminal Appeals course at the same time you take this course, switching back and forth to have all cases in chronological order, or you may wish to refer to one course while taking the other, so you can see how it all fits together.

Three court of appeals cases are included in the Court of Criminal Appeals course because the cases resulted in opinions by both courts, and one Court of Appeals decision which responds to a Court of Criminal Appeals opinion is included in the Court of Criminal Appeals course.

Ethics and professional responsibility issues abound. As you study, consider whether a lawyer has a duty to file a motion to recuse or a duty not to file. Consider how explicit the criticism of the judge must be. Consider whether the judge will attempt to "get even" with you or your client. Consider whether a grievance may be filed against you for either filing a motion, or failing to file a motion. Consider the ethical, malpractice, and disciplinary risks of procedural errors. Consider the possibility of the court imposing sanctions against you for filing a motion to recuse. Consider whether failure to file, or properly file, or properly present and argue, a motion to recuse constitutes ineffective counsel. Consider the position of a lawyer who is considering filing a motion to recuse the trial judge who appointed the lawyer to represent an indigent defendant, and the conflict of interest since the judge controls the lawyers fee and future appointments. Yikes!

The Process

1. Study this text.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

3. Keep track of your actual study hours and dates. After you complete your study, you certify your actual study hours at www.YouKnowItAll.com and you choose to whether to pay by check or credit card. Study time counts. Procedural and administrative time does not count. You receive credit for the actual study time you put in, based on your certification, up to the maximum for the course. Tuition is similar. If your actual study time is more than the maximum, your tuition is capped at the maximum. If your actual study time is less than the maximum, tuition is calculated based on your actual study time, at $20 per hour. Please certify your actual study time even if it is above the maximum. This allows us to better calibrate our courses, and helps the MCLE regulators recognize the real time you spend in your study.

4. YouKnowItAll.com provides a certificate of your attendance with the course name, course number, and the CLE credit hours you earned. If you are in the Texas bar, we report your credit to the State Bar of Texas. If you are in another bar and need something else, let us know.

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This course is primarily a case study which relies on the words of the courts which are quoted so that you may read them yourself. The teacher has selected quotations, deleted original emphasis, added the authors emphasis, and moved citations to footnotes. Commentary by the teacher is included in the text and in footnotes. Five asterisks ( * * * * * ) identify each new case, If a case doesn’t interest you, just search for * * * * * to find the next one. This also helps if you wish to go back to reread a case.

There are three kinds of footnotes.

1. Footnotes by the court retain the court’s original number. Our footnote is a footnote to that number.

2. Footnotes that move citations to the footnotes are intended to make the material more readable. Our footnote has the court’s citations.

3. Footnotes that contain some of the author’s commentary.

If you read this course online, your browser will probably let you click on a footnote number to go to the footnote and click on the number in the footnote to return to the text. Some browsers will show the footnote if you hold your curser over the footnote number without clicking If you print the text, you may wish to staple the footnotes separately so you may easily refer to them. They are at the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page. You may copy it into a word processor to print it if you like. If you have any problems, let us know.

Optional Telephone Conference

The teacher is available for an optional personal telephone conference on the substance of this course. If you have a question about the application of the material in this course to a particular case, or would just like to visit about this topic, you may do so. A brief basic phone conference is $20 per course. If you would like to schedule a phone conference, email or call YouKnowItAll.com.

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Table of Contents

Court of Appeals

Ricondo v. State 657 S.W.2d 439 (Tex.App.-San Antonio 1983)

Limon v. State 632 S.W.2d 812 (Tex.App. Houston [14th Dist.] 1982)ß

Morris v. State 692 S.W.2d 109 (Tex.App.-El Paso 1984)

Crawford v. State 719 S.W.2d 240 (Tex.App.-Eastland 1986)

Thibodeaux v. State 726 S.W.2d 601 (Tex.App.-Hous. (14 Dist.) 1987)

Emerson v. State 756 S.W.2d 364 (Tex.App.-Hous. (14 Dist.) 1988)

Cumpian v. State 812 S.W.2d 88 (Tex.App.-San Antonio 1991)

McDuffie v. State 854 S.W.2d 195 (Tex.App.-Beaumont 1993)

Musick v. State 862 S.W.2d 794 (Tex.App.-El Paso 1993)

Martin v. State 876 S.W.2d 396 (Tex.App.-Fort Worth 1994)

Vargas v. State 883 S.W.2d 256 (Tex.App.-Corpus Christi 1994)

Reese v. State 905 S.W.2d 631 (Tex.App.-Texarkana 1995)

Madden v. State 911 S.W.2d 236 (Tex.App.-Waco 1995)

Bruno v. State 916 S.W.2d 4 (Tex.App. - Houston [1st Dist.] 1995)

Soderman v. State 915 S.W.2d 605 (Tex.App.-Hous. (14 Dist.) 1996)

Degarmo v. State 922 S.W.2d 256 (Tex.App.-Hous. (14 Dist.) 1996)

Ross v. State 947 S.W.2d 672 (Tex.App. - Texarkana 1997)

Stafford v. State 948 S.W.2d 921 (Tex.App.-Texarkana 1997)

Moorhead v. State 972 S.W.2d 93 (Tex.App.-Texarkana 1998)

Kelly v. State 18 S.W. 3d 239 (Tex.App - Amarillo 2000)

George v. State 20 S.W.3d 130 (Tex.App. - Houston [14th Dist.]2000)

Stafford v. State 63 S.W.3d 502 (Tex.App.Texarkana 2001)

Buerger v. State 60 S.W.3d 358 (Tex.App.-Houston [14th Dist.] 2001)

Washington v. State 71 S.W.3d 498 (Tex.App. Tyler 2002)

Rosas v. State 76 S.W.3d 771 (Tex.App.-Houston [1st Dist.] 2002)

Dickerson v. State June 26, 2002 (TexApp - San Antonio 2002)

Teixeria v. State 89 S.W.3d 190 (TexApp6 Texarkana 2002)

Franks v. State 90 S.W.3d 771 (Tex.App. — Fort Worth 2002)

Jaenicke v. State May 15, 2003 (TexApp1 Houston 2003)

Ex parte Glen Ray Bruce June 19, 2003 (TexApp2 Ft.Worth 2003)

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Beware: Recusation applies to both civil and criminal cases. That does not mean that the law is the same. The Supreme Court and Court of Criminal Appeals have created differing rules by interpreting the same law and rules differently.

Tips: First check to see whether a case is a civil case or a criminal case. Do not cite a civil case in a criminal case or a criminal case in a civil case without considering the differences in the line of cases that govern each.

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Issues: The court is skeptical of the recusation concept and statute, particularly in criminal cases. A procedural reason is stated as grounds to deny relief to the defendant.

Ricondo v. State 657 S.W.2d 439 (Tex.App. San Antonio 1983)

[A]ppellant . . .maintains that the trial judge should have referred a motion to recuse himself to the presiding judge of the administrative judicial district under the provisions of Tex.Rev.Civ.Stat. art. 200a, § 6. 1[2]

On the day the case was set for trial the appellant filed a pro se motion for the judge to disqualify or recuse himself, alleging that the judge was prejudiced against the appellant by virtue of a remark he had made, unrelated to the case, with respect to the appellant's treatment in jail. The motion asked that the appellant be granted "a change of court or assign another judge for this trial." The only references to the disqualification of a judge in the Code of Criminal Procedure are found in articles 30.01 and 30.02. We note that the applicable criminal statutes explain how a replacement judge is to be obtained through article 200a, whenever a judge is disqualified. The criminal procedure statutes do not require that a determination of disqualification be made by another judge. Appellant apparently contends that his conviction should be reversed because the trial court did not request another judge to rule on the "motion for judge to disqualify or recuse himself." Appellant misreads the applicable statutes.

No criminal case has ever been reversed for noncompliance with article 200a. In Lee v. State,[3] the Court of Criminal Appeals reversed a conviction where they found the trial judge had been of counsel for the State and was therefore disqualified to try the case. The issue was raised by a motion to disqualify filed with the trial judge. The defendant in Lee was tried before the 1977 amendment to article 200a, but while article 30.01 and article 30.02 of the Code of Criminal Procedure contained their present language. The Court of Criminal Appeals made no mention of any need to have another judge pass on the motion; they merely felt he had made the wrong ruling.[4] In McLeod v. Harris[5] the Texas Supreme Court held in a mandamus action, that the language in article 200a, section 6, is mandatory in civil cases. This holding has been followed in several civil cases, but not without questioning its soundness.[6]

In Limon v. State[7] the Court held, in a criminal case, that the trial court did not err in refusing to request the appointment of another district judge to hear the motion to recuse where the motion was not in writing and timely filed. We emphasize the Court of Criminal Appeals' refusal of discretionary review. It constitutes the only recent indication of the Court's feelings as to the need for the mandatory application of Tex.Rev.Civ.Stat. art. 200a, § 6.

In our case, the motion is in writing; however, it was filed the day of trial and alleges none of the constitutional or statutory grounds contained in Tex. Const. art. V, § 11, or Tex.Code Crim.Proc. art. 30.01. The Court of Criminal Appeals has held that the grounds of disqualification stated in the Texas Constitution and the Code of Criminal Procedure are exclusive.[8] The motion contained no request that another judge rule on it, and the trial attorney made no request that the motion be referred to another judge for hearing, nor did the appellant offer proof of any allegations in the motion. We must conclude that the motion was a thinly disguised effort at delaying the trial. A bare allegation by a criminal defendant on the eve of trial that he feels the trial judge is prejudiced against him, should not effectuate an automatic continuance by necessitating the intervention of the presiding administrative judge and another district judge.3[9] The language in Cameron v. Greenhill, 582 S.W.2d 775 (Tex.1979), where a motion was filed requesting that the judges of the Supreme Court recuse themselves, is pertinent here. "To hold that merely naming a judge as a party would disqualify him would put power in the hands of litigants to frustrate our judicial system."[10]

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Issue: An oral motion to recuse isn't worth the paper that it is (not) printed on.

Limon v. State 632 S.W.2d 812 (Tex.App. Houston [14th Dist.] 1982).

“This is an appeal from a conviction for voluntary manslaughter arising out of a shooting incident. The questions presented are . . . (4) whether the trial court erred in refusing to request the appointment of another district judge to hear a motion to recuse; and (5) whether the trial judge erred in refusing to recuse himself.

“. . . . appellant complains of the action of the trial court in failing to request the appointment of another district judge to hear a motion to recuse. Tex.Rev.Civ.Stat. art. 200a § 6 provides:

A district judge shall request the presiding judge to assign a judge of the Administrative District to hear any motion to recuse such district judge from a case pending in his court.

“In the case before us. . . no written motion was ever filed. The record does contain a brief discussion concerning recusal. The trial judge had asked the attorneys to prepare over the weekend to be heard on the matter. When the issue was discussed, all trial counsel for appellant did was orally move for recusal. We hold the statute requires that a timely formal written motion be filed before the mandatory provision of the statute concerning the hearings of such motions is activated. 1[11] . . . “Affirmed.”

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Issues: The court is confused. Does the statute apply? Does rule 18a apply? Does the civil concept apply to criminal cases? The court of criminal appeals confused things. Due process requires a hearing. The appeal is abated for referral and hearing. After the assigned judge denies recusation, the court of appeals affirms.

Morris v. State 692 S.W.2d 109 (Tex.App. El Paso 1984)

Carol Johnene Morris appeals from an order revoking probation and sentencing her to confinement for five years. We abate the appeal.

On April 21, 1983, Appellant was found guilty of theft of property of a value of $200.00 or more but less than $10,000.00 and was assessed punishment of confinement for a period of five years and a fine of $500.00. The sentence of confinement was suspended and Appellant was placed on probation for five years. The State's Third Amended Petition for Revocation of Probated Sentence was filed February 17, 1984. At the initial hearing on February 24, 1984, the court granted a continuance until February 27, 1984, because of the recently filed amended pleading. On February 27, 1984, the Appellant filed a Motion for Recusal on the grounds that the trial judge "has a personal bias or prejudice concerning the Defendant in this cause and personal knowledge of disputed evidentiary facts concerning the proceeding which renders his impartiality in this cause to be reasonably questioned to a degree that failure to recuse would constitute a denial of due process to the Defendant." The motion requested that the trial judge recuse himself or request the presiding judge of the administrative district to assign another judge to hear the motion. The trial court denied the motion on the grounds that it was not timely filed.

By a single ground of error, Appellant contends that the trial court abused its discretion in overruling the motion and in failing to have another judge rule on the motion. Tex.Rev.Civ.Stat. art. 200a, sec. 6, provides that a district judge shall request the presiding judge to assign a judge of the administrative district to hear any motions to recuse. This article applies in criminal cases.[12] But, this article has no guidelines as to the requirements of such a motion or time limits within which it shall be filed.[13] Rule 18a, Tex.R.Civ.P., which applies in civil cases, requires that such a motion be filed "[a]t least ten days before the date set for trial or other hearing * * *." It was suggested in a footnote in Limon v. State,[14] that Rule 18a, Tex.R.Civ.P., now defines the procedure for application of Article 200a. But, footnote 2 in McClenan v. State suggests otherwise. Tex.R.Crim.App.P. 211 provides for the application of the Rules of Civil Procedure in certain instances in criminal cases, but its application is limited to "proceedings in the courts of appeals" and thus it has no application to proceedings in the trial court with which this case is concerned.

In Robb v. Robb,[15] we concluded that the provisions of Article 200a, sec. 6, are mandatory, although we questioned the soundness of the holding in McLeod v. Harris[16] on the issue of application. In the McClenan case, the Court of Criminal Appeals concluded that bias could be a ground for disqualification if it is shown to be of such a nature and to such an extent as to deny a defendant due process of law. Now we find ourselves questioning the soundness of that court's application of the rule it announced. The court said, "appellant's motion did allege a proper ground for recusal." Yet no recusal hearing was required by the majority opinion. Once proper grounds are alleged, can the moving party be denied the statutory right to a hearing? McLeod v. Harris says it may not be denied. It would appear that the legislature intended that a newly assigned judge, and not the appellate court, would pass on the admissibility of evidence and the credibility of the judge under attack, at least in the first instance.

Nevertheless, in our case there is nothing in the record upon which we could decide the issue raised even if we were inclined to do so. But, in the interest of time and expense to all concerned, we do not reverse the revocation of probation at this time. Instead, we abate the appeal and order the Honorable Pat M. Baskin to request the Presiding Judge of the 7th Administrative District to assign another district judge to hear relator's motion to recuse and we direct that the statement of facts and order of the assigned judge be certified and sent to our Clerk for filing in this proceeding.[17] Although we shall not set a deadline for the filing of the supplemental record, we request that the hearing be conducted and the record filed with all due dispatch.

The appeal is abated.

OPINION AFTER REMAND

In compliance with our prior opinion in this case, the presiding judge of the 7th Administrative District assigned the Honorable C.V. Milburn to hear relator's motion to recuse and we have received the testimony from that hearing, at the end of which the court held that there "is absolutely * * * no credible evidence in this case that would require the recusal of Judge Baskin." We have thoroughly reviewed the statement of facts from the recusal hearing and we agree with Judge Milburn's determination of the motion to recuse.

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Issues: Recusation in civil vs. criminal cases. Rule 18a does not apply to criminal cases. No recusation procedure exists for constitutional county judges. Disqualification was alleged, but grounds were not appropriate.

Crawford v. State 719 S.W.2d 240 (Tex.App. Eastland 1986)

[A]ppellant entered her plea of guilty on September 5, 1985. Judgment was rendered and signed the same day. The transcript reflects that a motion for new trial was filed September 12, 1985. A "motion for disqualification," which contains no file mark, certifies that it was served on the county attorney by depositing same in the mail on October 7, 1985.

Appellant contends that upon the filing of her motion for disqualification, the trial court is bound by the provisions of TEX.R.CIV.P. 18a. 1[18] The Court of Criminal Appeals has stated that Rule 18a may not be applicable to criminal proceedings. In McClenan v. State[19] Footnote No. 2, Judge Davis discussed the application of Rule 18a:

Currently no rule of criminal procedure exists setting forth the requirement for a motion based on Art. 200a, sec. 6. We invite the legislature to set up strict requirements for such a motion, i.e.: sworn motion setting forth prima facie proper grounds, to be filed before trial or as soon as the issue is presented. Tex.R.Civ.Pro. 18a applies in civil cases and can furnish guidance for a criminal rule. However, a more precise and detailed criminal rule would be of more help to judges and lawyers alike.[20]

In State ex rel. Millsap v. Lozano,[21] Presiding Judge Onion also questioned whether Rule 18a applies to criminal cases stating:

[I]t is not clear that the rule [Rule 18a] applies to criminal cases.[22]

TEX.R.CIV.P. 2 supports the proposition that Rule 18a should not be applied to criminal cases. Rule 2 states that: "These rules shall govern the procedure in the justice, county, district, and appellate courts of the State of Texas in all actions of a civil nature...." Our Supreme Court has held that such language is an express limitation of the scope of the rules of civil procedure to civil actions in courts.[23] The Texas Court of Criminal Appeals held in Holloway v. State,[24] that the rules of civil procedure promulgated by the Supreme Court are applicable and controlling in criminal matters only when so made by statute. Rule 18a, by its terms, does not include criminal matters. We hold, therefore, that Rule 18a does not apply to criminal cases.

This case presents the issue of the disqualification of a constitutional county judge. TEX.CODE CRIM.PRO. art. 30.03, sec. 1 sets forth a procedure for selecting a new county judge to try a criminal case after a county judge has been disqualified. However, Article 30.03 contains no procedure for initially disqualifying a county judge. Also pertinent to the matter of judicial disqualification is TEX. GOV'T CODE sec. 74.036(c)(3) which provides that: "A district judge shall ... request the presiding judge to assign another judge of the administrative district to hear a motion relating to the recusal of the district judge from a case pending in his court." By express statutory language, this statute applies only to district judges and does not apply to county judges.[25]

We conclude, therefore, that there is currently no statutory procedure for the mandatory recusal of a county judge in a criminal case.[26]

TEX.CONST. art. V, sec. 11 provides that:

No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.

TEXAS SUPREME COURT, CODE OF JUDICIAL CONDUCT, Canon 3, part C appears to enlarge the list of judicial disqualifications, but such code specifically excludes constitutional county judges from its application. A constitutional county judge's mandatory disqualification would, therefore, be based solely upon grounds stated in the Texas Constitution. It has been held that the constitutional grounds for disqualification of judges are exclusive: that is, they specify all the circumstances that forbid a judge to sit.[27] To this constitutional list of prohibitions, the Court of Criminal Appeals has added judicial bias where shown to be of such an extent as to deny a defendant due process of law.[28]

In her "motion for disqualification," appellant stated as her grounds that:

It would be a conflict for Judge Wilson to hear Defendant's Motion for a New Trial filed in this cause in that the grounds of the Motion for a New Trial go to the judge's failure to properly admonish the defendant and further go to error committed by the judge calculated to injure the rights of the defendant in that the judge discussed the case with defendant's father prior to the hearing and because of such conversation defendant entered a plea of guilty in open court believing that the court would dismiss certain cases and levy a minimum fine on one, which was not what the court did. Because of such actions of the court, defendant's plea of guilty could not have been entered after a knowing and voluntary waiver of his right to counsel and other rights provided by the U.S. and Texas Constitutions and the Texas Penal Code and Code of Criminal Procedure.

This motion suggests two grounds for disqualification of the county judge: (1) failure to properly admonish appellant, and (2) a conditional plea was not voluntarily and knowingly made. Neither ground is a constitutional ground for disqualification of a judge, nor do they show bias to such an extent as to deny appellant due process of law.

The point of error is overruled. The judgment is affirmed.

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Issues: Rule 18a applies to criminal cases. The motion has no effect if it is not filed 10 days before trial. The motion was not referred and no hearing was held on it, but this court, being intuitive, finds that there was no basis for it because the defendant had a fair trial and bias was not apparent on the record.

Thibodeaux v. State 726 S.W.2d 601 Tex.App. Houston 14th Dist. 1987)

[A]ppellant's . . . argues the trial court erred in not requesting the presiding judge of the administrative district to hear appellant's written motion to recuse the trial judge.[29] Appellant filed his motion to recuse on the basis of bias and prejudice on the first day of trial. The court did not consider the motion, since it was untimely filed.

We hold appellant's motion, filed on the first day of trial, was filed untimely.[30] Since there is no applicable Texas rule of criminal procedure, we cite the ten day notice provision of Rule 18a, Texas Rules of Civil Procedure, as furnishing guidance:

(a) At least ten days before the date set for trial or other hearing in any court other than the Supreme Court, the Court of Criminal Appeals or the court of appeals, any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case.

In the interest of justice we have reviewed the record in light of appellant's challenge and his right to a fair trial. Our review reveals no bias or prejudice on the part of the trial judge towards either defense counsel or appellant which warrants reversal.

The judgment of the trial court is affirmed.

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Issues: The court which, in Thibodeaux, held that Rule 18a applies, holds that it does not apply but it furnished "guidance" so it applies it. An unverified motion filed within 10 days of trial need not be referred and the court, intuitively, can tell from the record of the trial on the merits that the judge was not so biased that reversal was just.

Emerson v. State 756 S.W.2d 364 (Tex.App. Houston 14th Dist. 1988)

. . . Appellant contends the trial court erred in not following the appropriate procedure on his motion to recuse the trial judge.

The record reflects that Appellant's trial commenced on October 28, 1986. Appellant filed his Motion to Recuse on the basis of bias and prejudice on November 3, 1986, and the trial judge denied the motion on that same date. Appellant apparently contends that the trial court erred in not requesting the presiding judge of the administrative district to hear Appellant's written motion to recuse the trial judge as mandated by Tex.Gov.'t Code § 74.036(c)(3).

We hold that Appellant's motion, filed several days after the trial had commenced, was filed untimely.[31] There is no applicable rule of criminal procedure setting forth the requirements of a motion to recuse. However, TEX.R.CIV.P. 18a has been cited as furnishing guidance.[32]

Rule 18a(a) provides:

We find that not only was Appellant's Motion to Recuse untimely, but also that his motion was not verified. However, in the interest of justice, we have reviewed the record in light of Appellant's contentions and his right to a fair and impartial trial. We have discovered no bias or prejudice on the part of the trial judge towards either Appellant or his defense counsel which warrants reversal.

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Issues: Neither rule 18a or the statute apply to criminal cases. If the court's description of the defendant's motion is accurate, it was as confused as the court. Authority contrary to this court's holding is ignored.

Cumpian v. State 812 S.W.2d 88 (Tex.App. San Antonio 1991)

On the day of trial, appellant's counsel filed a "Motion for Disqualification or Recusal of the Trial Judge." Essentially, appellant alleges that the trial judge would be "so biased and prejudiced" that appellant could not receive a fair trial. He makes this claim because the trial judge had earlier tried a companion case, and therefore, would have knowledge of the alleged offense and the facts previously revealed in the companion case.

Our state constitution provides a basis for disqualification of a judge. Article 5, section 11 provides in part:

Sec. 11. No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.... When a judge of the District Court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case; or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law.

Article 30.01 of the Texas Code of Criminal Procedure provides:

No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree.

In a criminal case, one seeking to disqualify the trial judge must urge one or more of the specified grounds in article 30.01. In a civil case, there is more latitude, and specific procedures to follow in attempting to disqualify the trial judge are outlined.[33] For example, in a civil case a motion to recuse must be filed ten days prior to trial or hearing. Also, upon the filing of a verified motion seeking a recusal, a different judge will determine the merits of the motion. There are no similar provisions for criminal cases. And, it is unclear whether the civil rules pertaining to disqualification or recusal apply in a criminal matter.[34] The Court of Criminal Appeals said, in effect, that a motion for recusal was not available in criminal matters and invited the legislature to "set up strict requirements for such a motion" and that the civil rules can "furnish guidance for a criminal rule."[35]

Thus, we hold that a disqualification of a trial judge in a criminal matter must comply with the strict requirements of the constitutional and statutory criminal procedure provisions. "The Court of Criminal Appeals has held that the grounds of disqualification stated in the Texas Constitution [art. V, § 11] and the Code of Criminal Procedure are exclusive."[36] "To this list of constitutional prohibitions, the Court of Criminal Appeals has added judicial bias where shown to be of such an extent as to deny a defendant due process of law."[37]

Assuming the rule in McClenan is still valid, we review the motion and the record. We find no evidence in the record that the trial judge was biased or prejudiced against appellant. Assertions not supported or found in the record cannot be considered by the appellate court.[38] Appellant contends that the bias and prejudice is shown by trial errors committed by the judge. "Even so, Plaintiffs' remedy was not a motion to recuse; the proper remedy was to assign error on the basis of the adverse rulings. To require recusal, a judge's bias must be extrajudicial and not based upon in-court rulings."[39] Appellant contends that the judge's bias is reflected by proceeding to trial in his case rather than a murder case, where that defendant was in custody. We find no bias, prejudice, or error in allowing the judge to call the trial docket in a manner he deems appropriate.[40]

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Issues: Rule 18a applies to criminal cases. A motion must be timely and contain "particulars" and lacks "admissible" "facts." The defendant confuses disqualification and recusation

This court, in footnote 2, states that article 200a, section 6 was repealed in 1985. This is an example of a court that did not notice that 200a was included in the Texas Government Code. The substance of 200a was moved to the Government Code. It was not repealed.

McDuffie v. State 854 S.W.2d 195 (Tex.App. Beaumont 1993)

Point of error three provides, "The trial court committed reversible error by not considering recusal based on Third Accused's Motion To Recuse filed on 21 June 1988." Recusal of judges in criminal cases is governed by TEX.R.CIV.P. 18a of which paragraph (a) provides:

At least ten days before the date set for trial or other hearing in any court other than the Supreme Court, the Court of Criminal Appeals or the court of appeals, any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case. The grounds may include any disability of the judge to sit in the case. The motion shall be verified and must state with particularity the grounds why the judge before whom the case is pending should not sit. The motion shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated.

In the instant case, the recusal motion in question was filed on the day of trial. Regardless of what may or may not be read into footnote 3 of DeBlanc v. State,1[41] we find the operative language of that opinion disposing of the recusal issue contained in the following:

Rule 18a obviously presupposes that litigants should not be able to halt judicial proceedings at will by the simple invocation of the mandatory provisions of Article 200a, section 6.... 2 In the case at bar, appellant failed to comply with Rule 18a and as such he will not be heard to complain on appeal of the denial of an opportunity to have his motion heard by a judge other than the one assigned to his case.

In the instant case, we find no abuse of discretion by the trial court in summarily refusing to consider appellant's blatantly untimely recusal motion. Furthermore, appellant's motion completely fails to comply with what we perceive to be the mandatory language of Rule 18a as to "particularity" with regard to the grounds for recusal. Appellant's motion also fails to set forth any facts "as would be admissible in evidence." For all of the above reasons, appellant's third point of error is overruled.

Appellant's fourth point of error provides, "The trial court committed reversible error by not considering disqualification based on Third Accused's Motion To Recuse filed on 21 June 1988." In examining appellant's motion and his argument under this point of error, appellant fails to appreciate the distinction between "recusal" and "disqualification" of a judge. With regard to recusal, see the discussion of Rule 18a, supra.

TEX.CONST. art. V, sec. 11 provides a basis for disqualification of judges, stating in part: