Abdygapparova v. State, No. 4-05-00321-CR (Tex. App. 7/25/2007)
| Decision Date | 25 July 2007 |
| Docket Number | No. 4-05-00321-CR.,4-05-00321-CR. |
| Parties | ASEL ABDYGAPPAROVA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-4918-A, Honorable Mary Román, Judge Presiding.
REVERSED AND REMANDED.
Sitting: Alma L. LÓPEZ, Chief Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
This appeal arises from a capital murder conviction with punishment assessed at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant Asel Abdygapparova presents ten points for review. We reverse the trial court's judgment and remand the cause to the trial court for a new trial.
On March 31, 2001, Appellant Asel Abdygapparova, a University of Texas at San Antonio (UTSA) student from Kazakhstan, was involved in the abduction and murder of Rosa Rosado in San Antonio, Texas. Five days after the murder, Abdygapparova told retired FBI agent Bruce Gatti about the abduction and murder she witnessed. Gatti contacted the San Antonio Police Department and then traveled with Abdygapparova to a Fuddrucker's restaurant to meet the police. During their meeting, Abdygapparova provided the officers with a detailed account of the events of March 31, 2001.
According to Abdygapparova's statement to officers and her testimony at trial, Abdygapparova, who was five months pregnant at the time, and her boyfriend, Ramon Hernandez, left their residence and picked up Ramon's friend, Santos Minjares. Ramon was driving, and Abdygapparova was in the back seat, when Santos grabbed Rosa Rosado, a woman waiting at a bus stop, and pulled her into the car. Santos then sat in the backseat of the car, with Rosado sitting between himself and Abdygapparova. Rosado's head was ultimately covered with a towel and duct tape.
After driving around for approximately half an hour, Ramon stopped at a motel and Santos instructed Abdygapparova to remove money from Rosado's purse and pay for a room. Abdygapparova complied, even providing her driver's license information to the motel clerk.1 Ramon drove the car to the motel room and Santos took Rosado inside. Abdygapparova explained that she walked into the motel room to use the restroom and Santos instructed her to leave and obtain bleach and a douche from the house. Abdygapparova claimed she followed Santos's instructions because she was afraid of him.
According to Abdygapparova, when she returned to the motel room, approximately ten or fifteen minutes later, she found Ramon and Santos, both clothed, and Rosado, laying on the bed, half-naked, but alive. Abdygapparova went into the restroom with Ramon while Santos raped Rosado. Ramon then insisted she leave and purchase a shovel at Wal-Mart. Abdygapparova complied and purchased a shovel, using a gift card. According to her testimony, before asking for assistance at Wal-Mart, she did not know the meaning of the word "shovel." When Abdygapparova returned to the motel room around 11:00 p.m., Santos answered the door and told her that Rosado's dead, naked body lay on the floor.
Abdygapparova further relayed that Ramon and Santos collected everything from the room, wrapped Rosado in a blue and red blanket, and placed her body in the back seat of the car. Santos sat in the passenger seat and Ramon instructed Abdygapparova to drive them to a clearing near UTSA where she dropped them off; she was told to return in thirty minutes. When Abdygapparova returned to the clearing, they again told her to leave. She complied and returned a short time later to pick them up. The three then drove to Ramon's residence where Abdygapparova participated in the destruction of Rosado's personal items. On April 2, 2001, Abdygapparova took the car used in the commission of the offense to Austin and traded the vehicle for a white Ford.
By all accounts, Abdygapparova fully disclosed the events, including her role, to the officers. She provided a five-page written statement, led the officers to Rosado's body and the motel, and even provided the gift card she used at Wal-Mart. Abdygapparova was not given any promises of immunity for her statements. Several officers testified that Abdygapparova appeared scared of both men, especially Santos, and even remained at the police station until both Ramon and Santos were in custody. Over four months later, on July 24, 2001, Abdygapparova was charged with the capital murder of Rosa Rosado.
Abdygapparova was indicted in September of 2001 and received court-appointed counsel. After both Ramon and Santos were tried and convicted, Abdygapparova's case was set for trial on February 17, 2004. On November 5, 2003, three months before trial and two and a half years after indictment, the State filed its notice to seek the death penalty. On December 3, 2003, the trial court heard several pre-trial motions, including Abdygapparova's motion for an interpreter. During the hearing, the court denied the interpreter for voir dire, but did agree to have an interpreter available for any witness being called to testify needing assistance. Shortly thereafter, Abdygapparova retained different defense counsel. On January 8, 2004, a rather heated motion for substitution of counsel was heard before the trial court and ultimately granted, with specific instructions that, pursuant to the scheduling order, the court would not entertain any plea offers by the parties.2 The trial was scheduled for the following year.
The case was called for trial on January 14, 2005. Prior to the start of voir dire, defense counsel again urged the court to appoint an interpreter for Abdygapparova. Again, the trial court denied the request. After a hotly contested voir dire and trial on the merits, the jury convicted Abdygapparova of capital murder and assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice.
Abdygapparova presents ten issues on appeal, including failure to recuse the trial court, violations of due process, improper admission of evidence and cumulative error. We sustain several of Abdygapparova's issues, including errors in the admission of evidence and improper ex parte communications amounting to a violation of due process.3 Accordingly, we reverse the trial court's judgment and remand the cause to the trial court for a new trial.
Abdygapparova alleges the administrative judge abused his discretion in denying her motion to recuse the trial judge. She argues the trial judge was so biased and prejudiced against her that the trial amounted to a denial of due process of law. On November 18, 2004, Abdygapparova filed a motion to recuse the trial judge alleging that the trial judge's actions and comments exhibited a strong bias against her. After the trial judge denied the request, the motion to recuse was heard on November 30, 2004, before the presiding judge of the Fourth Regional Administrative Court.
In an attempt to show the trial judge's bias, Abdygapparova presented the administrative judge with several examples of the trial judge's comments during a previous hearing.4 Counsel also argued the trial judge's apparent anger toward Abdygapparova and her counsel suggested the judge appeared more worried about inconveniencing the State's witnesses than protecting Abdygapparova's rights. Finally, defense counsel argued, the trial judge previously presided over the trials of the two co-defendants, resulting in a predetermination of Abdygapparova's guilt that precluded a fair and impartial trial.
An appellate court reviews an order denying a motion to recuse under an abuse of discretion standard.De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (en banc) (). Because this standard requires a determination that the court acted without any guiding rules and principles, the trial court abuses its discretion only if the ruling on the motion was not within the zone of reasonable disagreement. Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992); see also Bruno v. State, 916 S.W.2d 4, 6 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd) (citing Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)) ("The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles; it is not whether . . . the facts present an appropriate case for the trial court's action."). Furthermore, in the absence of a clear showing to the contrary, an appellate court presumes the trial court was neutral and detached. Steadman v. State, 31 S.W.3d 738, 741 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). "The determination of whether recusal is necessary must be made on a case-by-case fact-intensive basis." McCullough v. Kitzman, 50 S.W.3d 87, 89 (Tex. App.-Waco 2001, pet. denied).
Abdygapparova contends the trial judge's comments and rulings show a clear bias. When bias is alleged as a ground for recusal, the recusal of a judge is appropriate only if the movant provides sufficient evidence to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the judge. Kemp, 846 S.W.2d at 305. See Tex. R. Civ. P. 18b. Only when the bias attains a level denying the movant due process of law is recusal warranted. Kemp, 846 S.W.2d at 305; McLenan v. State, 661 S.W.2d 108, 109 (Tex. Crim. App. 1983) () ( that the defendant must demonstrate the court's bias denied his right to due process). Additionally, the...
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