*1 WHITEHEAD, David Charles
Appellant, STATE Texas.
No. PD-0713-07. Appeals Criminal of Texas.
June
Rehearing Denied Sept. Dunbar, Abilene,
Frederick T. Ap- pellant. Adams,
Sarah Assistant District Attor- Eastland, Horn, ney, Jeffrey L. Van Austin, for Attorney, State’s State. HOLCOMB, J., opinion delivered the Court, MEYERS, PRICE, in which WOMACK, JOHNSON, COCHRAN, JJ., joined.
The court of held that the trial statutorily disqualified was not trial. We reverse. 24, 2000, April appellant pled guilty
On felony before the trial court to the offense indecency a child.1 The trial court Herod, judge proceedings Honorable Steven R. discussedherein. Court,presided District 91st at all the trial *2 August 15, in East- appellant’s punishment impris- assessed at on or about suspended there years County, appellant for but im- land “did then and onment four placed intentionally knowingly of and him on and threaten position that sentence another, Tucker, community for four At harm an supervision years. to-wit: Joe to kill Joe threatening record does unlawful point some thereafter —the to-wit: for precise not reflect date —the State Tucker in retaliation and on account appellant’s filed a motion to com- status of Joe Tucker as witness.” revoke munity supervision. 20, 2005, brought On June the State on August 14, appellant held to trial under the indictment
On plea guilty. pre- on the mo- his evidentiary hearing an State’s evidence trial, included Among tion to revoke. State’s wit- sented at the which evidence letter, hearing photocopy appellant’s at was appellant’s nesses were officer, Tucker, Judge that he had threatened probation Mr. Joe and effect Keith, Herod, and because pellant’s Ms. Jan Keith. At Mr. Tucker therapist, Ms. they August hearing, participated the trial court had in the conclusion times appellant’s community supervision hearing. revocation Three revoked trial, for Herod imprisonment during appellant’s Judge him to was sentenced by name, years. specifically mentioned before the four had jury, of those that as one August 15, appellant, On who was in the letter. threatened County incarcerated in the Eastland Jail prison, hearing all of at the awaiting to a state sent After the evidence transfer letter, ap- guilt jury guilty In the stage, letter to his found girlfriend. wrote, charged other “I live of in the indictment. pellant among things, retaliation Keith, Judge, hearing kill that After additional get Mrs. evidence Tucker, pets, punishment stage, jury and their families assessed prior lant’s rape punishment, their women and children in front enhanced felony indecency for jailer them. That them!” A conviction with will teach child, appellant’s during imprisonment for fifteen read letter her routine $10,000. monitoring non-privileged in- and a fine of outgoing, mail, the appropriate mate she notified appellant, citing On Arti- appeal, direct threatening authorities the letter’s cle Texas of Criminal 30.01 of the Code tents. Procedure, time that argued the first January 15, 2004, judgment court’s void be- On an Eastland Coun- Herod, an cause as one of those grand Judge returned indictment ty letter, had been threatened in charging appellant felony offense disqualified his trial.3 alleged The indictment of retaliation.2 36.06(a) provides, § Texas Code Penal part, person pertinent commits an ‘‘[a] intentionally knowingly if he harms offense held, long recognized, that if a We have threatens harm another an unlawful under on act in retaliation for or account of trial, any re presiding at a then 30.01 from public of another as serv service ant, witness, status sulting judgment nullity be chal witness, prospective infor lenged See Wil for the first prosecution It is under mant.” no defense n. 3 son v. party threatened was not this statute that the Crim.App.1998); Davis Doyle when the threat made. Appellant argued further that Article injured party injured in this case. The 30.01 reflected a “compelling policy pro- party in this case Joe Tucker.” Ibid. tecting against appearance of judicial (emphasis original). “[sjimply
bias” and that injury Appellant petition later filed a for dis- alleged Herod [was] [in *3 review, cretionary granted. we See indictment not dimmish the statutory did] 66.3(d). Tex.R.App. petition Proe. In his by concern that he would perceived be the brief, accompanying as a public biased arbiter of a case arising tends that the court of appeals interpreted writing of this letter.” narrowly, Article Judge 30.01 too and that reply brief, In its the State conceded was, case, injured Herod in this an party statutory disqualification that the of a trial meaning within the statute even judge may court be raised for the first though he not a in victim named appeal, time on but argued the State indictment. Appellant argues further that “Judge Herod not disqualified [was] Article purpose “disquali- 30.01 is to hearing because, this case” appel- “[w]hile fy judge in certain select [trial court] lant Judge [did] threaten Herod in the situations public might where the think the same Tucker,” manner he threatened Joe judge is too close to the in ques- incident “[t]he indictment not allege any [did] ac- tion,” “[rjeading plain tion of and that lan- by retaliation towards Judge guage entirety Herod.” of the statute in its unam- biguously disqualifies who The court appeals agreed with the in injured have been the same [criminal] parties that the statutory disqualification transaction as the in alleged victim of a trial judge may court be raised for the otherwise,” indictment.” “To hold first time on appeal, but the rejected continues, lant pur- “would mean that the argument that Judge Herod was dis- pose of this statute could easily vital qualified State, in this case. Whitehead pleading thwarted artful on the State’s 171, 220 S.W.3d (TexApp.-Eastland 174 part.” brief, In reply its the State contin- The court reasoned within not, meaning 30.01, of Article ues insist that Herod a trial court judge, in any particular case, case, injured party an disquali- within the fied from presiding at the meaning if he is of the statute because he a victim named in the indictment. Ibid. named in victim the indictment. “Judge Herod disqualified,” was not
court explained, “because he was not an provides: Article 30.01 State, 347, (Tex.Crim. 869 S.W.2d despite should revisit the issue” the fact that 315, App.1994); case, Gamez ques in the instant the State has never (Tex.Crim.App.1987); cases, tioned the correctness of this line of Lee v. it, court of did not address and we grant reject did not review to it. We consider 1977); Gresham v. 43 Tex.Crim. argument. reviewing the dissent's We are (1902); court, proper is neither nor our usual (1896); G. practice to consider issues that have not been Dawson, Dix & R. Texas Practice: Criminal presented to and addressed the court of (2nd §
Practice and Procedure 42.259 Dawson, appeals. See G. Dix & R. 43A Texas ed.2001). The dissent concedes that these Practice: Criminal Practice and Procedure "prior say statutory disquali cases do (2nd §§ Supp. 44.21 & 44.24 ed. 2001 & fication of the trial can be raised for the 2007-2008) and cases cited therein. appeal” argues first time on but that "[w]e a trial justice peace spectacle having shall
“No avoid he, he judge preside sit in over a trial which as a where injured, or been of party victim, where he has might be as a See called witness. accused, or the counsel State Tex.R. Evid. 605. injured party the accused or the reasonably Although we certain of are him consan- may be connected with underlying intent affinity de- the third guinity within 30.01, less certain somewhat Chapter gree, determined under It seems to meaning. statute’s exact us Code.” Government clause, the that the statute’s first one of this statute was The earliest version today, commanding that “[n]o identical all enacted it was shall justice peace sit in *4 respects the version. pertinent to may party he be the in- January v. 36 Tex.
See Crim. fairly susceptible two inter- jured,” (1896). 179, 179 One could read that clause as pretations. noted, appeals have the court of As we court of did and conclude that the meaning of held within the Article any particular prosecu- judge, in criminal 30.01, any particular in judge, a trial court tion, “may injured” be the if he party ease, if “may party injured” only be the he named is a in the indictment. Un- victim is a victim named in the indictment. We judge interpretation, that both the der court of must determine whether the trial that parties the would know before he the interpreted correctly. peals statute statutorily and could disqualified con- was such interpret When we a statute accordingly. On the duct themselves oth- 30.01, duty our as Article constitutional hand, apparent if one in mind the er bore appar the give effect to to determine underlying 30.01 and the fact intent Article legislators intent of the voted for ent who of the statute con- opening that the clause Boykin v. it. language “may party the in- tains the be determining (Tex.Crim.App.1991). In this party the named jured” “may be intent, focus our apparent legislative we indictment,” could read in the one on the text the statute and ask attention clause as does opening ourselves, ordinary legislators how would judge, any particular that a crimi- clude understood that text? party in- prosecution, “may Lanford nal be Appeals, 847 S.W.2d Fourteenth Court of that he if the evidence shows was jured” in the crim- among defendant’s victims or episode inal transaction at issue. 30.01, Focusing on the text of Article we apparent legislators that the who think statute, in the ambiguity Given crimi- for it intended to ensure that
voted consider, in may legitimately arriving we free from justice nal was administered bias such extratex- interpretation, at a sensible Certainly, appearance of bias. history or legislative tual factors as who a victim the in consequences particular of a probable against him or might biased defendant v. Fourteenth terpretation. so, allowing such appear to be at least Lanford Appeals, Un preside over the defendant’s legisla existing fortunately, we of no know threaten the fair administration would Nevertheless, history. conclude we upon tive justice bring disrepute sug the statute interpretation legislators voted for who judiciary. by appellant better advance the trying gested will 30.01 have been also JOHNSON, J., intent of the vot- also legislators concurring who filed COCHRAN, J., opinion, joined. Thus, interpret the statute. ed for opening clause of Article 30.01 to mean join majority opinion I judge, any particular that a trial court appears to expresses view it conform party prosecution, “may criminal However, the current state law. and is therefore injured,” represent current of the law state if the that he presiding, evidence shows reading precedent. an accurate among the defendant’s victims long Our case law said an issue issue, episode criminal transaction or of the trial that a reasonable har- person such would jurisdictional and could be impartiality. doubts as to the judge’s bor appeal.1 the first time It has also been of a long true that actions who Because evidence adduced statutorily disqualified, and therefore with lant’s trial showed that Herod was are void.2 The diffi criminal one victims culty is that case law seems to con at issue (appellant’s transaction letter of jurisdiction. found In Davis 15, 2003), August such reasonable that a S.W.2d 555 person harbor im- would doubts as 1997), difficulty. this Court addressed *5 partiality, Judge statutorily Herod was sense, in its is “Jurisdiction narrow appellant’s presiding possessed courts, something not trial, and the resulting judgment of convic- judges. judge mei’ely is an officer nullity. tion was a We sustain court, lawyers, of like the the bailiff for ground review. reporter. He and the court is not parte Ex George, court itself.” 913 intent, holding, It not our this (Tex.Crim.App.1995). “The S.W.2d 523 a upon cast shadow judge. We powers of authority and no doubt that is of integrity of, to, grow jurisdic- incident highest that he recused would have tion the court itself.” 48A of C.J.S. had a himself motion for been filed. recusal (1981). Strictly Judges Section 54 judgment reverse the We of the then, jurisdiction speaking encompasses appeals and remand the case to power of the tribunal over for further consistent proceedings subject person.... matter opinion. this with tendency Similar to the to confuse
jurisdiction
authority
practice
with
is the
legal
referring
vernacular
to both
JOHNSON, J.,
concurring
also filed a
person presiding
the institution and the
J.,
opinion,
COCHRAN,
joined.
which
it as the “court.” Either or
both
KELLER,
J.,
dissenting
P.
filed a
misconceptions
these common
led the
State,
KEASLER
opinion,
Spindler
which
question jurisdiction of the court, question the dictional and must therefore be or in instance victing court; authority magis may jurisdiction or raised be raised may any issue in raised at for the first time on trate jurisdic action judicial without this case around revolves Spindler, statutorily he is dis- tion is void.” to act when added). Spindler re (emphasis time to qualified. Perhaps it is reconsider State, 690 S.W.2d Gallagher [v. Davis lying this issue and hold that overruled held, (Tex.Crim.App.1985)], which claim of of the statutory jurisdiction “The jurisdictional issue judge as convicting court for the first time on be raised However, Gallagher a true time.” appeal. Alas, parties have not raised It jurisdictional issue. dealt with this issue. jurisdiction of the tribu
subject matter P.J., KELLER, dissenting which nal, constitutionally mandated. HERVEY, JJ., joined. KEASLER, and hand, other dealt nei Spindler, on the nor constitu the tribunal its ther with him to fifteen Until the sentenced It dealt the au jurisdiction. tional fine, $10,000 seemed and a Therefore, magistrate. thority of Judge Herod perfectly pre- content perceive a difference Spindler failed Appellant now side over his trial. jurisdiction between another crack at decided that he wants the institution the court between sentence, and the acquittal or a lesser it. person acting for gives The Court has “no him one. equating these distinct In addition doubt” would have analysis, ex- Spindler’s concepts without if had filed a recused himself *6 a Gallagher wrong because tension Yet motion him to do so.1 asking authority to act power filed, lack of judge’s now overturns one was not always held to a case has been parties, judge, after the conviction mote jurisdiction, through be a time gone and the have always in a has not resulted precisely, trial, expense and after of a holding that the conviction was void gotten sentence weigh has to to collateral attack.... subject one from a of a better against the chance prior cases Although has the au- different some jury. our case law called While statutory disqualification judge preside juris- say to do thority of the that the first issue, the trial can be dictional we now disavow characterization, ex- cases inconsis- because as time on those appeal,2 trend judicial power regard- current plained, jurisdiction tent with the Court’s courts, ing not individuals. We should revisit vested fundamental error.3 the issue. 557-59. Id. at that, Davis, prior cases is me after rationale of these It appears renders disqualification to the trial opposed judge’s of a (1896)(owner animal was brother of of stolen op. 1. See Court’s judge). 2. They a failure to distin- no 3. often reflect (Tex.Crim.App.1994)(probate had also statutory guish and constitutional jurisdiction); between criminal 491-92, disqualification. 179-80 Appel- I Texas Rule of any judgment proceeding “void” would abide subject “nullity,”5 challenge late 33.1.13 At least Procedure time,6 on At least corpus.7 even habeas disqualification based alleged judicial for this part of articulated rationale solely on this case14—the statute —as was that lack of judge’s conclusion brought to the trial complaint should be qualification jurisdiction affected the in timely fashion before court’s attention court.8 on appeal. relief can be obtained Such validity
But the of these propositions, oppor- give rule would exception the usual which underlie the situation tunity to correct without requirement object, eroded with expense wasteful ago, of time. passage Fifteen “piecemeal” Marin v. our fundamen- jurisprudence tal replaced error
three-category approach some
cases, changes whether can be complaints
brought
appeal.9
first
time on
in Davis v.
Then
we held
Monique SIMS, Appellant,
Taneesha
qualification
over a
judge’s
preside
really
matter of
rath-
jurisdiction.10
er than
STATE of Texas.
Richardscm,
in Ex
Finally,
we held
No. PD-1575-07.
judicial
that a claim of
disqualification-
Criminal
of Texas.
Appeals
Court of
even of constitutional dimension—could
brought
not be
for the first
habeas
time on
July 2, 2008.
corpus.11 We said there that the defen-
Rehearing
Sept.
Denied
dant could have raised his
of a con-
claim
and,
if it
stitutional
at trial
there,
appeal.12
rejected
complain
Johnson,
6.