*2 COHEN, TAFT, JJ. Before HEDGES and
ORDER
HEDGES, Justice. Bruno, pleaded Appellant, Kevin Arnold guilty aggravated robbery, and true to one paragraph. The court assessed enhancement years punishment at 60 confinement. error, appellant points three contends (1) appel- denying erred disqualification in de- motion for and lant’s evidentiary hearing priving him of an (2) trial; appellant and motion for deprived of effective assistance of counsel.
FACTS charged aggravated
Appellant was with punishment robbery, which was enhanced for felony prior conviction. He waived with a guilty jury plea trial and entered plea of true charge and a to the enhancement The trial a find- paragraph. court withheld presentence ing guilt and ordered a inves- (PSI). hearing, punishment At the tigation appellant charged guilty found as allegation to be and found enhancement at 60 punishment The court assessed true. prison. years in appellant filed a Mo- October On Disqualification1 a Motion for tion for interchangeably, "disqualifi- there are Although are often used the terms “recusal” and cation” whether, opinion, the facts in this Court’s New Trial. The Motion trial appropriate case for the present an not hear alleged that the trial Op Aquamarine action. Downer v. “Judge court’s for New Trial because his Motion erators, Inc., against prejudiced Jim Barr is so biased or *3 1985). reason) (for [appellant] that a fair whatever by [appellant].” hearing/trial cannot be had DISQUALIFICATION MOTION FOR 16, 1993, days 73 after sen- On December (RECUSAL) tencing, judge the Motion for heard mo- argues a recusal Appellant that once Immediately Disqualification it. and denied filed, or judge must recuse himself tion is thereafter, objected appellant’s counsel presiding the case to the herself or refer for New Trial proceeding with the Motion sup- As judge administrative district. of the judge, on his con- presiding before the based appellant cites both Tex.Gov’t Code port, Judge and tention that Barr was biased 74.059(c)(3) § 18a. and Tex.R.Civ.P. Ann. prejudiced in his Motion for Dis- as set forth 74.059(c)(3) qualification. judge offered to hold of the Government Section ap- abeyance until Motion for New Trial Code. appeal the pellant’s counsel had a chance to appellant’s argu address We first Disqualifica- judge’s Motion for denial of the Disqualification in for ment that his Motion appellant stated that al- tion. Counsel for 74.059(c)(3)of the Government voked Section objected, had no alternative though he he (Ver § 74.059 Code. Ann. Tex.Gov’t Code given procedural time con- go but to forward 1988).3 ap disagree. This section non judge point, At de- straints.2 this and only assignment to the former plies later, days to hear the motion. Two clined visiting judges. judges to sit as retired by for new trial was overruled the motion 692, 695-96 v. 874 S.W.2d Mauldin Tex.R.App.P. 31(e)(3). operation of law. ref'd) (holding pet. (Tex.App —Tyler . apply judge to a that section 74.059 OF REVIEW STANDARD court where the elected to sit who was added). filed) (emphasis recuse was judge’s a motion to denial of We review distinguished State ex. The Mauldin on an abuse of discre motion to recuse based Lozano, Millsap v. 692 S.W.2d 692 rel. Morris v. tion standard. See by appellant for the Crim.App.1985), cited Paso — El applies. Laware, 74.059 proposition that section 'd); pet. ref Petitt Mauldin, It noted that at 696. writ Harris, Millsap relied on McLeod n.r.e.); Warehouse Co. ref 'd Maritime Gulf re (Tex.Crim.App.1979), which Towers, assigned judge recuse himself denied); quired an Tex.R.Civ.P. writ —Beaumont to recuse in accordance 18a(f). forward a motion is or for abuse of discretion The test Mauldin, at section 74.059. to with without reference the court acted whether 696; at 477. Mauldin Millsap, 692 S.W.2d principles; it is any guiding rules and case, 31(e)(1). Motion on the In this re distinguishing and different characteristics Disqualification for New Trial Kilgarlin and Motion apply. William W. quirements that See Bruch, days Recusal was 73 after sentence. and Jennifer and (1986). In this Mary’s Judges, 17 L.J. St. case, however, parties dispute that the there is no reads as follows: 3. Section 74.059 filed judge that the motion understood and the (a) provisions judge assigned under A although a Motion appellant, mistitled as powers judge of chapter has all the this to be a Motion Disqualification, was intended assigned. to which is Recuse. (c) statutory county court A district mo- judge may permit an accused's 2. The trial .... shall: presented heard trial to be tion for new assign (3) presiding an- request the days from, date sentence [sic] after within relating 31(c)(1). to hear a other The court TexR.App.P. imposed. See pending a case in his recusal of the trial within a motion shall determine Tex.R.App.P. court. imposed. date sentence after If the motion. judge to hear such ruling in also declined to follow Crawford himself.... (Tex.App.— recuses pet.) no because the himself, Dallas (d) If declines Crawford the issue apparently did not consider judge of presiding forward he shall assigned presiding judge was of whether the judicial ... an district the administrative Mauldin, 696, n. 5. 874 S.W.2d at or elected. motion, referral, op- and all order Except concurring statements. posing and judi Appellee to take asks this Court in which good stated in the order cause judge in that the trial this cial notice taken, judge shall action is further Barr, judge at the Judge was an elected Jim take no orders and shall make no further motion to re- time he heard filing of the in the case after further action *4 theory judicial that The notice is cuse. hearing on the mo- prior to a motion and easily a existence is so determin where fact’s tion. certainty considered from sources able with (d).5 (c), 18a(a), In v. Tex.R.Civ.P. Winfield reliable, good re it would not be sense to 920, Daggett, 846 S.W.2d State, proof. v. quire formal See Gonzales 1993, original proceed [1st Dist.] —Houston 746, (Tex.Crim.App.1987). the trial ing), this held that Court Legal Directory Texas evidences The or refusing to either recuse himself erred in Judge Barr was elected to the 337th Crimi hearing to the adminis refer the motion for Legal in 1 Texas nal District Court 1988. refused judge. trative Once (1994).4 Judiciary DIRECTORY, The Section himself, duty forward he had a to to recuse Therefore, judicial we take notice that the judge of the presiding the the motion to judge. an elected Honorable Jim Barr is judicial Id. This district. administrative 74.059(c)(3) Because of the Govern Section criminal cases. Arnold v. applies rule also to apply judges, elected ment Code does not to State, 543, (Tex.Crim.App. applicable the facts of this case. it is not to 1993). Texas Rule of Civil Procedure 18a. OF VERIFICATION LACK requirements the of a Rule 18a addresses satisfy Appellant did not Rule 18a’s disqualification recusal of trial motion for or specific requirement that a motion judges. The See Tex.R.Civ.P. 18a. 18a(a). fail This be verified. Tex.R.Civ.P. provides: rule procedural require satisfy ure Rule 18a’s to Recusal or Rule 18a. right in of his to have ments results waiver Judges judge assigned by another his motion heard
(a) by presiding the of the administrative ten the date set At least before judicial hearing any party ... district. for trial or other may of the court a file with clerk in Cases. why Recusal Criminal stating grounds be-
motion pending not fore whom the case is 544-45, State, v. 853 S.W.2d at Arnold in case.... The motion shall be sit Appeals held that a of Criminal verified.... judge may make an initial de- criminal trial not in the recusal motion is
termination that
18a(a).
(c)
If the motion
compliance
in
with rule
any
proceedings
Prior to
further
under no
comply, the trial
case,
himself does not
judge shall either recuse
the mo-
obligation
either recuse or refer
judge of the ad-
to
request
presiding
judge.
assigned to another
The
assign a
tion to be
judicial
district
ministrative
attempts
judi
Appellant
to convince this Court that
Appeals
5.
has taken
of Criminal
4. The Court
reads,
18a,
apply to his
it now
should not
rule
as
directory.
in that
notice of information found
cial
11-12).
present
(Appellant’s
The
brief at
case.
State,
See Maddox
January
Ap-
1988.
effective on
rule became
pellant’s
denied,
Crim.App.1979),
447 U.S.
cert
motion was filed on October
(1980).
2994,
A
to a hear
defendant has a
that,
his Motion for
if this Court finds that
ing
motion for new trial when
on a
procedurally defective
matters
cannot be deter
raises
motion
Trial was
his Motion for New
Reyes v.
mined from the record.
and/or
require a hear-
properly presented
If a
as to
(Tex.Crim.App.1993).
such
decisionmaker, then he re-
support
ing by a neutral
trial and
motion
defendant’s
counsel.
sufficient,
hearing
ineffective
We
on
ceived
assistance
ing
are
affidavit
point of error at
mandatory.
A
to consider this
this
defen-
decline
Id. at
motion
writ) (un
1993,no
App.
Dist.]
light
appeal
[1st
in
of the
time
of our abatement
— Houston
trigger
did not
timely
motion to recuse
filed
hearing
for new trial.
for a
on his motion
Texaco,
option);
mandatory
or refer
recuse
Accordingly,
appeal for 60
we abate this
Co.,
Pennzoil,
Inc. v.
to con-
and remand for the trial court
1987 writ
[1st Dist.]
— Houston
hearing
duct a
denied,
n.r.e.),
cert
485 U.S.
ref'd
trial.
direct that the statement of facts
(1988)(mandatory
1305, L.Ed.2d 686
S.Ct.
on the motion for new trial
mo
triggered unless recusal
hearing is not
judge’s signed
and the
order be certified and
disqualification);
grounds for
tion states valid
filing
proceeding.
sent to our
this
Clerk
White,
Properties v.
Houston N.
See Morris v.
recusal is even if the motion is durafly Daggett, defective. Winfield [1st S.W.2d — Houston writ) subject (judge of recusal Dist.] no authority on the timeli motion has no to rule McAdams, motion); ness of Carson In the Matter of E.D.M. [1st 228-29 Dist.], 1993, orig. proceeding) (pub. pending) No. 01-95-00571-CV. (judge subject recusal motion cannot rule Texas, motion, Appeals if the merits of the even he be (1st Dist.). Houston groundless and the motion to be lieves Gomez, faith); brought in bad Carson Nov. - Houston writ) subject (judge of recusal no rule on whether the motion cannot verified). properly cases, panels
In at least four other of our contrary, procedurally that a have held trigger defective motion to recuse mandatory provisions of rule 18a. John- (Tex. Smith, 612, son