333 S.W.3d 661
Tex. App.2011Background
- Avilez was convicted by jury of stalking and violation of a protective order, with concurrent three-year prison terms.
- Complainant Amanda Bucklin dated Avilez for about 18 months; after relationship ended, protective orders were issued against Avilez.
- Bucklin, later married Zach Bucklin, testified that Avilez repeatedly contacted them, followed them, and sought information about them over eight months.
- Avilez had previously pled guilty to stalking with deferred adjudication and supervised release; conditions included no contact with Amanda.
- During trial, Avilez challenged the court’s handling of testimony and twice sought a new trial on bias grounds; the court restricted scope of evidence and frequently admonished witnesses to answer questions with yes/no.
- The court ultimately convicted Avilez of both offenses and sentenced him to concurrent three-year terms; Avilez appeals arguing double jeopardy and judicial bias.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether stalking and protective-order violation violate Double Jeopardy | Avilez argues stalking is a lesser-included offense of protective-order violation. | State contends the two offenses have distinct elements and are not the same offense. | Not the same offense; elements differ; double jeopardy does not bar multiple punishments. |
| Whether the trial judge was biased against Avilez entitling him to a new trial | Avilez asserts due process required an impartial judge; frequent admonishments and contempt rulings biased the trial. | State argues trial court exercised discretion properly; no fundamental due-process violation shown. | Record inadequate to demonstrate a due-process violation; no reversible bias shown; no fundamental error established. |
Key Cases Cited
- Littrell v. State, 271 S.W.3d 273 (Tex. Crim. App. 2008) (Blockburger-focused analysis for double jeopardy in punishment)
- Blockburger v. United States, 284 U.S. 299 (1932) (elements test for determining multiple punishment eligibility)
- Milner v. State, 263 S.W.3d 353 (Tex. App.—Houston [1st Dist.] 2008) (framework for evaluating overlapping offenses)
- Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006) (due-process impartiality considerations; preservation noted)
- Jaenicke v. State, 109 S.W.3d 793 (Tex. App.—Houston [1st Dist.] 2003) (principles on due-process review of judge conduct)
- Lavoie v. United States, 475 U.S. 813 (1986) (due-process concerns when judge has pecuniary interest or acts as prosecutor)
- Tumey v. Ohio, 273 U.S. 510 (1927) (lead to questions of judicial impartiality when judge has prosecutorial role)
- Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009) (due-process requirements for neutral decision-maker)
- In re Murchison, 349 U.S. 133 (1955) (illustrates prohibition on prosecutorial-influenced judging)
- Mayberry v. Pennsylvania, 400 U.S. 455 (1971) (concerns about judge's partiality and fairness of trial)