Abelardo Gerardo Gonzalez v. State
04-15-00530-CR
| Tex. App. | Oct 13, 2015Background
- Appellant Abelardo G. Gonzalez (pro se) appeals the denial of his Second Motion to Recuse a trial judge; conviction entered Jan. 15, 2010.
- Gonzalez filed requests for the clerk’s record for three related trial causes and asks the appellate court to limit the record to specific items (motion to recuse, emails, denial order, judgment sheets).
- Appellant contends the clerk’s record filed in the appeals is defective/inaccurate, that he has not seen the trial clerk record, and that this prejudices his ability to supplement or identify defects.
- He seeks the Fourth Court of Appeals’ jurisdiction to review the denial of the Second Motion to Recuse as an appealable post-judgment matter.
- Appellant requests assistance from the appellate clerk under Tex. R. App. P. 34.5(d) to inform the trial clerk of defects and to prepare a supplement to the clerk’s record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review denial of Second Motion to Recuse | Gonzalez: appellate court has jurisdiction because appeal seeks review of denial of a post-judgment recusal motion following final judgment | State: (not in record) implicit position that procedural posture not an interlocutory appeal or jurisdiction limited | Court treated appeal from denial of second recusal motion as within appellate jurisdiction (appellant cites controlling appellate authorities) |
| Whether clerk’s record is defective/inaccurate | Gonzalez: record filed is overly broad and/or does not reflect requested items; he has not seen the trial clerk record and thus cannot identify or request necessary corrections | Clerk/State: (not detailed) clerk filed a voluminous record and provided filing notices; no substantive concession | Appellant asked court to direct clerk to correct/ supplement record under Tex. R. App. P. 34.5(d); court notified parties and appellant sought supplement filings |
| Whether appellate clerk should assist pro se appellant under TRAP rules | Gonzalez: requests clerk assistance under TRAP 34.5(d) because he lacks access to the trial clerk record | Clerk: correspondence indicates clerk filed records and sent notices; no detailed opposition recorded | Appellant’s request for assistance and for supplementation of the clerk’s record was presented to the court and trial clerk via formal requests |
| Proper contents of the supplemental clerk’s record | Gonzalez: requests specific items only (second motion to recuse, denial order, emails, judgment sheets, certificate of right to appeal) | Clerk/State: implicit that clerk previously filed a broad record that may already include items | Appellant formally requested the clerk to prepare and certify a limited supplement under TRAP 34.2/34.5(c) for the appellate court’s review |
Key Cases Cited
- McKnow v. State, 915 S.W.2d 842 (Tex. App. 1996) (authority on appellate jurisdiction for certain post-judgment motions)
- Ex parte Shumake, 953 S.W.2d 842 (Tex. App. 1997) (recitation of standards for appellate review of post-conviction matters)
- Ex parte Silva, 963 S.W.2d 945 (Tex. App. 1998) (discussion of appellate treatment of collateral and post-judgment claims)
- Workman v. State, 343 S.W.2d 446 (Tex. Crim. App. 1961) (criminal procedure precedent cited regarding post-judgment appellate issues)
- U.S. v. Truesdale, 211 F.3d 898 (5th Cir. 2000) (federal appellate standard cited in jurisdictional argument)