*1 systematic to the level of continuous and support general juris-
contacts that would (con-
diction in Texas. See id. at 809-10
cluding general jurisdiction existed
where defendant did not in Tex- advertise
as, Texas, physical presence had no
performed all business services outside
Texas, carefully constructed its con-
tracts to ensure it did not benefit from law).
Texas appellant’s We overrule
fourth issue. affirm grant-
We the trial court’s order
ing appellee’s special appearance and dis-
missing appellant’s against appellee. suit KNIATT, Appellant
Nathan Andrew Texas, Appellee.
The STATE of
No. 10-03-00199-CR. Texas,
Court of
Waco.
Dec.
9H Background Procedural indictment for charged by Kniatt was At a methamphetamine. possession hearing on December pretrial (whom just had Kniatt attorney terminated) at- district and the assistant court either torney informed the trial reject plea to State’s Kniatt intended reneged Kniatt had bargain or that offer agreement, and plea bargain on a counsel. In to retain new Kniatt wanted Knize stated: response, Judge for trial Nathan Kniatt set State versus I understand Monday morning. As they attorneys they thought from the they In fact had plea agreement. had a today and the defen- plea agreement, that, want reneged dant doesn’t has informed agreement. I’ve also been All that’s lawyer. to fire the he wants okay up. me. I’ll take all this with Law, Gladden, go- He’s Attorney Richard S. At Defendant’s bond revoked. Denton, TX, jail to trial. Have a seat Appellant/Relator. ing pending for there, trial your sir. We’ll set over Grubbs, County Joe F. Ellis District around to it. get when we Waxahachie, TX, Atty., Appellee/Re- for 11, 2001, Kniatt returned to December On spondent. guilty plea. trial and entered a court plea agreement, with the accordance GRAY, Before Chief Justice Justice adjudication of trial court deferred VANCE, and Justice REYNA. community supervi- Kniatt on guilt, placed years, and fined Kniatt sion for three ABATEMENT ORDER ON MOTION $3,000. FOR REHEARING to subsequently filed a motion PER CURIAM. community supervision and revoke Kniatt’s adjudication guilt. principal Appel- proceed issue before us in to with for application rehearing pre-conviction lant Nathan Kniatt’s motion for Kniatt filed a motion to corpus the trial heard of habeas and is whether who writ hearing ap Knize from Judge Judge Kniatt’s motion to recuse District recuse hearing the State’s mo correctly interpret- plication and from Gene Knize adjudication proceed will tion to governing ed the law recusal. We Marshall, sitting hearing guilt.1 Judge for a Marvin appeal abate this new the motion to recuse assignment, denied Kniatt’s recusal motion. us, is thus adjudicate. The recusal motion has abandoned and to 1. On this remand and directed at Knize’s his motion to recuse Knize from hear application. ruling habeas ruling motion to revoke on Kniatt’s and on the State’s evidentiary hearing. Judge after an Knize disagreement. able Id. at 120-21. A trial then application heard and denied Kniatt’s court abuses its discretion when it acts corpus. writ of habeas He also heard arbitrarily unreasonably, without ref granted State’s motion revoke erence guiding principles, rules or *3 adjudicated guilty. Kniatt it misapplies when the law to the estab appealed
Kniatt the trial court’s denial lished facts of the case. See State v. Hern- request corpus of his for habeas relief and don, (Tex.Crim. 215 S.W.3d 907-08 denying order his motion to recuse. State, App.2007); Lyles v. 850 S.W.2d We held that Kniatt met his burden of 502 (Tex.Crim.App.1993); Beaumont showing guilty plea that his was involun Bank, Buller, N.A. v. 806 S.W.2d 226 tarily given and that the trial court erred (Tex.1991). in denying Kniatt’s habeas corpus applica appellate An court “should tion, reverse the but we did not reach the recusal State, issue. trial Kniatt v. 157 court’s decision for an S.W.3d 86- abuse of 2005), rev’d, (Tex.App.-Waco discretion; say, is to only when it S.W.3d 657 (Tex.Crim.App.2006), cert. de appears that the trial court —nied, —, 127 S.Ct. standard, legal erroneous or when no rea (2006). L.Ed.2d 514 The Court of Crimi support sonable view of the record could nal reversed our the trial court’s under conclusion the cor remanded the cause for us to consider light rect law and the facts viewed in the Kniatt’s recusal issue. Kniatt v. legal most favorable to its conclusion.” (Tex.Crim.App.2006), cert. DuBose v. 915 S.W.2d — denied, U.S.—, 166 (Tex.Crim.App.1996), overruled on other (2006). L.Ed.2d 514 In an unpublished grounds by Guzman v. 955 S.W.2d opinion on remand that we now withdraw 85, (Tex.Crim.App.1997);2 see also In order, by separate we held that the as Lancaster, Inc., re American Homestar of signed judge did not abuse his discretion (Tex.2001) (“A 50 S.W.3d trial in denying Kniatt’s motion to recuse. court has no discretion to determine what Kniatt’s motion for rehearing, pri which applying the law is or in the law to the marily alleges that assigned we and the and, consequently, facts the trial court’s judge misapplied misinterpreted or recusal analyze failure to correct apply or law law, is now before us. discretion.”). ly is an A trial abuse of misinterpret court Standard of Review has no discretion to Packer, law. See Walker v. 827 S.W.2d ruling denying review a a de We (Tex.1992); see also In re Arthur fendant’s motion to recuse for abuse of LLP, Andersen discretion. Wesbrook v. App.-Houston orig. pro [14th Dist.]
103, 120 (Tex.Crim.App.2000); Tex.R. Civ. (“as 18a(f). issues, ceeding) legal an error P. A recusal decision should not be reversed if it is within zone of amounting reason to an abuse of discretion can be stated, analyze apply correctly 2. As Holcomb has "As to the court to or the law determination, controlling legal principles, will constitute an abuse of discretion.” State an abuse of discretion occurs if the trial court Kurtz, (Tex.Crim.App. clearly analyze fails to the law cor J., 2004) (Holcomb, dissenting) (citing rectly. A trial court has discretion Ballard, (Tex.Crim.App. determining applying what the law is or 1999)). Thus, by law to the facts. a failure a trial prejudice4 kind of bias or had some misapply simple misinterpreting as get a law”). him that he couldn’t such against ing the Judge. fair Discussion that I can cite to I a case And have appeals out complains Kniatt that is a court of the Court says to re- by denying Antonio, erred his motion ... Cumplan,5 of San Texas Rule of cuse Knize under to recuse has that a motion specifically (b). 18b(2)(a) or Civil Procedure on bias and to be based following provi- under the mat- urged recusal Judge that’s related sions of Rule 18b: ters. *4 in words, rulings In the Court’s other any pro- in judge
A
shall recuse himself
to
the basis for motion
court can’t be
ceeding in which:
a defendant
because
recuse.
Just
(a)
might reasonably be
impartiality
his
Judge
way
the
that
the
doesn’t like
questioned; or
him,
make
just
he can’t
against
ruled
(b)
...
of
he has
alle-
spurious allegations and the
some
evidentiary
concerning
facts
disputed
require the
gations in and of themselves
proceeding.
the
Judge to
recused.
(b).
18b(2)(a),
Tex.R. Civ. P.
bench,
from the
the
making
ruling
In
its
During
hearing,
the recusal
State
assigned judge stated:
assigned
that Kniatt
argued
in
In
I have a narrow area
this case
that
Knize
required
show
operate on these mo-
which I have to
citing Cumpl-
and,
prejudice
had a bias or
And
on those
tions to recuse.
based
an v.
that
the motion had to be
deny the mo-
going
I’m
parameters,
arising
extrajudicial
from an
based on bias
in this case.
tion to recuse
source:3
Remand, the
Brief on
And I believe in a motion to recuse
the State’s
Kniatt had to
position that
going
that the burden is
to be on the
reiterated its
extrajudicial
arising from an
defendant here to show that the
show bias
18b(2)(b).
arguments
Contrary
extrajudicial
typically
to the State’s
3. An
source has
been
hearing, Kniatt did not have to
proceeding
“a
at the recusal
considered
source outside
States,
prejudice” be-
kind of bias or
at hand.”
v. United
U.S.
show "some
1147, 1152,
under the
cause he did not move for recusal
114 S.Ct.
127 L.Ed.2d
because,
18b(2)(b)
(1994);
part
and
see
first
of Rule
also Roman
below,
extraju-
arising only from an
[14th
hold
ref'd) ("The
Rule
plain language
need not be shown under
dicial source
18b(2)(b),
then,
18b(2)(a)
part Rule
meaning
extrajudicial
suggests
a
or the second
of
of
that
sought
judicial proceeding,
provisions on which Kniatt
a
the two
statement made within
judicial proceeding, cannot
recusal.
repeated
and
in a
source.”).
extrajudicial
As we
be from an
below,
Liteky,
Supreme
Court
show
5.Cumpian
meaning
("
pet.)
a broader
re
App.-San
articulated
'To
Antonio
548-55,
recusal,
Liteky,
U.S. at
judge's
extraju
source. See
quire
a
bias must be
”)
rulings.'
at 1152-57.
upon
in-court
dicial and not based
Inc., 773 S.W.2d
(quoting Grider v. Boston Co.
denied),
18b(2)(b)
(Tex.App.-Dallas
writ
part
provides that
4. The first
of Rule
Corp., 384
citing
v. Grinnell
and
United States
recuse himself if "he has
shall
“judge
proceed
shall recuse himself in
(Tex.
F.A.R.,
*2
re
2005 WL
impartiality might
in which ... his
(Tex.1995) (Enoch,
ley,
ing.”
Corp.,
United States v. Grinnell
J.’s,
J.,
Gammage,
responding to
declaration
582 n.
1710 n.
Lozano,
(1966)
recusal);
Millsap
§
(citing 28 U.S.C.
State ex rel.
L.Ed.2d 778
(1964)).
(Tex.Crim.App.1985).
Supreme
Court held: "The al-
Likewise,
leged
disqualifying
§
bias and
to be
coun-
28 U.S.C.
the federal
18b(2)(a),
must stem from an
terpart
to Rule
was derived
in an
on the merits on some
result
Code of Judicial Con-
the ABA’s 1972 Model
basis other than what the
learned from
Rogers, 909
duct and enacted in 1974. See
participation in the case.” Id. at
J.,
his
(Enoch,
responding Gam-
*6
S.W.2d
880
Liteky
Supreme Court
S.Ct. at 1710. In
the
J.’s,
recusal);
mage,
declaration
H.R.Rep.
per
rejected what
been called the
extra-
has
se
(1974),
reprinted in 1974
No. 93-1453
as
judicial-source
espoused
rule
in Grinnell. See
455,
the
6353. Section
U.S.C.C.A.N.
1157;
554-55,
Liteky,
U.S. at
pertinent
Liteky,provides in
statute at issue in
557-58,
(Kennedy,
id. at
States v. court-acquired dichotomy between Cir.1992))). The Court first described produces extrinsically acquired bias re- extrajudicial-source contours of doc- sults so intolerable as be absurd. trine, being which it described as “more *7 in in standard its formulation than clear its 544, 114
application.” Id. at at 1152. S.Ct. It the origin seems to us that of the examining history After the per of the se doctrine, “extrajudicial the source” and extrajudicial-source doctrine con- and its key understanding scope to its flexible (or arising finement to it), outside “exceptions” is so-called to proceeding, appli- the Court simply addressed its pejorative connotation of the 455(a), so, cability doing to section but in it prejudice.” words or Not unfa- “bias all (or “extrajudicial” “person- disposition redefined the towards an individual vorable al”) (or case) aspect properly of the doctrine13: is described his Liteky, at [14th 510 U.S. 114 S.Ct. at Dist.] reasons, (“For all these think that pet.); Concepcion, Sommers v. cf. doctrine, 'extrajudicial source’ as we have (Tex.App.-Houston [14th Dist.] it, 455(a).”) § applies (emphasis to described denied) discussing (quoting and added). correctly notes that some Tex- length). quote Liteky at We thus glossed as either cases have over or missed length rejection per emphasize its se to See, Liteky’s "extrajudicial.” redefinition of adoption meaning rule and of a of “extra- its Nava, e.g., 291- Barrientos judicial” judicial pro- other than outside (Tex.App.-Houston [14th ceeding at hand. pet.); DeBerry, Ludlow because, even “prejudice” say, for as “bias” or would not terms. One those the facts adduced springs or it opinion though is biased example, that world trial, so occurring it is against Adolf Hitler. the events prejudiced or inability or unfavora- to display a favorable clear words connote extreme as that is some- or disposition judgment. ble fair render either wrongful inappropriate, or how undeserved, or because it
because it is ex- there required whenever Recusal subject that upon knowledge rests concerning question a genuine ists (for example, ought possess not to merely and not judge’s impartiality, or juror criminal who has been biased from an extra- question arises when by receipt of inadmissible ev- prejudiced “plain-lan- A judicial source. similar concerning prior the defendant’s idence made, howev- guage” argument could be activities), or because it is ex- criminal 455(b)(1): (for er, §§ 144 and regard with example, in a crimi- degree cessive by properly They apply whenever bias or juror nal who is so inflamed exists, merely when it derives prior admitted evidence of defendant’s and not guilty that vote criminal activities he will source. As we from an facts). “extrajudi- described, of the regardless argument the latter have application cial source” doctrine is one pejorative connota- invalid because pejorativeness requirement to the this “prejudice” and of the terms “bias” tion they are “prejudice” terms “bias” and as only to they demands 455(b)(1) specif- §§ 144 and with used beyond judicial predispositions go judges. ic reference to the work of We acceptable. is normal what equivalent pejorative
think there is connotation, conse- wrong theory, though may equivalent It is it practical far ... “partiality.” not be too off the mark as the term quences, to matter, many opinions suggest, not refer to all favorit- “Partiality” does have, “extrajudicial is, ism, source” is the for some only to such as but only establishing disqualifying reason, basis for wrongful inappropriate. prejudice. bias or It is the common 548-52,114 at 1154-56. Id. at one, basis, it but not the exclusive since setting out these redefining After predisposi- is not the exclusive reason a extrajudicial-source for the wrongful inappropriate. can be new contours tion “factor,”14 rules for its the Court set forth predisposi- A favorable or unfavorable application: tion can also deserve to be characterized *8 proceedings judicial the context of on the contours of outside In further elucidation “doctrine,” (for judge's of the law example, Court view extrajudicial-source scholarly reading) acquired it to "factor” status: will not suf- narrowed presence an ex- fice. Since neither it, however, there is we have described As necessarily trajudicial establishes source The fact not much doctrine to the doctrine. bias, extrajudicial an nor the absence of opinion by a derives that an held bias, necessarily precludes it would judicial proceedings from a source outside speak the existence of a better to necessary condition for "bias or is not a determinative) (and significant "extra- often recusal, prejudice” predispositions since factor, "extraju- an judicial than of source” during developed of a trial will course doctrine, jurispru- in recusal (albeit dicial source” rarely) is it suffice. Nor sometimes dence. preju- condition for "bias or a sufficient 554-55, recusal, at 1157. opinions acquired Id. at some dice” since
First, judicial rulings alone almost nev- forts at courtroom administration —re- er constitute valid basis for a bias or main immune.
partiality motion. See United
States
555-56,
(bold
Id. at
We believe this
Accordingly,
persis-
based on the State’s
(and
to allegations
personal knowledge
of
of
arguments
assigned judge
tent
the
us)
disputed
party alleges
facts. Where a
arising
from an extra-
(outside)
judge possesses
judicial
the
personal knowledge
source could be the basis
facts,
recusal
the
disputed
of
must show of Kniatt’s
motion and on
as-
party
the
only a
signed judge’s comment that he had
wrongful-
that this
was
either
rule,
in
narrow area which to
we hold that
ly
wrongful disposi-
obtained or led to a
assigned judge
abused
discretion
his
tion of the case.
or
by misapplying misinterpreting applica-
Concepcion,
S.W.3d
43-
Sommers
ble recusal law.
[14th Dist.]
denied) (footnote omitted).
18b(2)(b),
Rule
movant
And under
pet.
judges
that the
possession
must show
Summary
personal knowledge
evidentia-
history
From
Rule
either
ry
wrongfully
facts
obtained
18b(2)(a) and
progeny,
from
and its
wrongful
the case.
disposition
led to a
18b(2)(a)
persuaded
are
does
Rule
Sommers,
44; see,
Edgar
e.g.,
20 S.W.3d at
require
(partiality)
a showing
not
of bias
K.L.,
An
921 Kniatt, would be substi- harmed denying error his discretion judge abused judge’s into the tuting ourselves the correct Kniatt’s recusal motion under place. law and whether application of recusal error, a harm judge, which is structural complaint judge was not that the trial dant’s Blue, 41 analysis is not warranted.” by engaging parte in ex communica- impartial J., (Mansfield, concurring). appear prosecutor, it would S.W.3d at 139 tions with the evidence was de- what
that court would hold that the erroneous
"No matter
[her],
right
[Abdygapparova]
a
against
defies a harm
had
nial of a motion to recuse
analysis:
judge.”
at 138. Be-
impartial
Id.
to an
impartial judge
an
cause the absence of
against
evidence
No matter what
is
integrity
of the trial
the bench infected
defendant,
the United States Constitution
is re-
process, the trial court’s
right
guarantees the defendant the
to an
versed,
for a
and the cause is remanded
State,
impartial
judge.
Blue v.
41
See
trial.
new
129,
(Tex.Crim.App.2000)
S.W.3d
138
3005280,
Abdygapparova
2007 WL
v.
J.,
(Mansfield,
concurring). The United
Oct.17, 2007,
(Tex.App.-San Antonio
*13-14
repeatedly
Supreme Court has
held
States
h.);
204
pet.
also Miles v.
S.W.3d
see
right
impartial
that a violation of the
822,
(“The
(Tex.Crim.App.2006)
826
harm-
judge
error that defies harm
structural
may
applied to” struc-
rule
not be
less-error
Fulminante,
analysis.
499 U.S.
Arizona
Examples of such "struc-
defect[s]....
tural
279, 309,
1246,
S.Ct.
L.Ed.2d 302
111
113
"partiality
defects” include ...
tural
18,
(1991);
California,
Chapman v.
386 U.S.
trial,
”);
judge presiding
...
In re
over
cf.
23 & n.
87 S.Ct
The would leave the assigned judge shall conduct hearing forty-five days within after the the burden to change secure the com assignment. date of The trial court.clerk through mon law a petition for discretion reporter and court supplemental shall file ary review with the Court of Criminal thirty records within days after the date of Appeals, and until the changed, law is so the recusal hearing. assigned If the the existing and announced motion, denies Kniatt’s recusal Kniatt’s Finally, law of this State. I would not supplemental will twenty days brief be due decide, make the change and then on the after the supplemental records are filed. possible grounds, thinnest of supplemental State’s brief will be due judge who considered and denied the recu- twenty days after supplemental Kniatt’s sal motion had abused his discretion. filed, brief is due or is whichever occurs comments, With these I submit the follow earliest. ing my opinion, substantially which is Court, prior by opinion of authored Chief dissenting. Justice GRAY Vance, Justice being that is on this date GRAY, Justice, TOM Chief dissenting to State, withdrawn. See Kniatt No. 10- Abatement Order on Remand. 03-00199-CR, 2007 LEXIS 5141 Tex.App. today Court announces a new rule (Tex.App.-Waco pet.), June no regarding the recusal of trial judges court withdrawn, WL in criminal proceedings. process In the LEXIS-(Tex. Tex.App. overrules, though Court it will not use order). 5, 2007, App.-Waco Dec. abatement term, recently precedent decided this Court. Appellant charged Nathan Kniatt was possession indictment with of metham-
One of the most axiomatic tenets of the
Safety
phetamine. See Tex. Health &
interpretation
common law is that
rule or
(Vernon 2003);
§
481.115
see
once decided
Code Ann.
lightly
should not be
over
481.102(6) (Vernon
§id.
At a
State,
Supp.2007).
turned. See Hammock v.
46 S.W.3d
pretrial
892-93
on December
(Tex.Crim.App.2001); Awadel-
(Tex.
State,
kariem v.
974 S.W.2d
trial court stated:
Ludlow,
(appellate
18. See
pet.)
I’ve also
okay
All
with me.
lawyer.
that’s
fire
judge
that the
Kniatt contends
bond is
up.
I’ll take all this
Defendant’s
by refusing to
error
reversible
committed
tri-
going
jail pending
He’s
18b(2)(a)
revoked.
under Rule
Judge Knize
recuse
al.
(b).
Tex.R.
P. 18b.
Civ.
or
there, sir.
set
Have a seat over
We’ll
denying a defen-
ruling
a
review
We
it.
get
around to
your trial when
of discre-
for abuse
motion to recuse
dant’s
4.)
(2
R.R. at
On December
29 S.W.3d
tion. Wesbrook
and en-
Kniatt returned to the trial court
deci-
A recusal
(Tex.Crim.App.2000).
guilty plea.
In accordance with
tered
if it is within
not be reversed
sion should
agreement,
the trial court de-
plea
Id.
disagreement.
of reasonable
the zone
Kniatt
adjudication
guilt, placed
of
ferred
at 120-21.
years,
for three
community supervision
on
$3,000.
of
and assessed a fine
Impartiality
motion to
subsequently
filed a
is the basis of
impartiality
When
guilt
adjudication
with
of Kniatt’s
proceed
if
mov-
motion,
appropriate
recusal is
community supervision.
and to revoke his
with
person
a reasonable
ant shows that
pre-conviction Application
Kniatt filed a
har
knowledge of the circumstances
Corpus, and a Motion
for Writ of Habeas
of the
impartiality
to the
bor doubts as
Judge Gene
Presiding Judge,
to Recuse
is of
that the bias
trial court and shows
Knize,
hearing
from
or
application
allowing the
and extent that
such a nature
proceed
from
the State’s motion to
deny the defendant’s
judge to serve would
sitting
A
adjudication
guilt.
judge
of law. Harris
process
due
right
by assignment denied the motion to re- State,
(Tex.App.-Waco
160 S.W.3d
Judge Knize heard the State’s mo-
cuse.
dism’d)
(citing Kemp v.
adjudicate guilt on June
tion to
(Tex.Crim.App.1992)).
846 S.W.2d
and,
adjudicated
guilty,
on June
Kniatt
Further,
from an ex
must come
the bias
application
denied
habeas
in an
trajudicial
and result
the merits.
than what
of the case other
on the merits
in the
participating
judge
learned
appealed
the trial court’s denial
771, 774
Rosas v.
and the order
case.
application
habeas
of his
2002, no
(Tex.App.-Houston [1st Dist.]
majority
A
denying his motion to recuse.
challenging the
party
Accordingly,
pet.).
his habeas issue
this Court sustained
must show
a motion to recuse
denial of
the recusal issue. See
and did not reach
arose from
trial court’s bias
(TexApp.-
that the
Conclusion Knowledge Personal would, sole overruling I after remand, argues Kniatt also his ha- issue on affirm the because the trial court. application beas was based on the partially that his was involun- allegation plea
tary and because he Knize believes
“likely to find that predisposition [had a] by something had
[Kniatt] been motivated legitimate plead than a
other reason guilty,” recusal because required Hussein HAIDAR and Aida Haidar, Appellants Judge Knize’s “state of was tainted mind knowledge of eviden- ‘personal ” tiary concerning proceeding.’ facts DESIGNS, FOUNDATION NORTEX (Kniatt Br. on 23 (quoting Remand at P.E., Jeriy Coffee, L. INC. 18b(2)(b)).) argues P. also He Tex.R. Civ. Appellees. rule does not No. 05-06-01548-CV. personal knowledge ground to the Texas, Court recusal. Dallas. court, Concepcion, In Sommers v. States, Dec. rea-
relying v. United may be ex- “although soned
ceedingly party af- ill-disposed towards