Chastain v. State

• Decision Date: 25 August 1983
• Docket Number: No. B14-82-062CR,B14-82-062CR
• Citation: 667 S.W.2d 791
• Parties: Kenneth Wayne CHASTAIN, Appellant, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 791

667 S.W.2d 791

Kenneth Wayne CHASTAIN, Appellant, v. STATE of Texas, Appellee.

No. B14-82-062CR.

Court of Appeals of Texas Houston (14th Dist.).

Aug. 25, 1983.

Petition for Discretionary Review

Refused Feb. 1, 1984.

David Bires, Houston, for appellant.

John B. Holmes, Jr., Houston, for appellee.

Before ROBERTSON, CANNON and PAUL PRESSLER, JJ.

PAUL PRESSLER, Justice.

Appellant appeals his conviction for capital murder. A jury found appellant guilty and punishment was assessed at life imprisonment in the Texas Department of Corrections.

On October 3, 1980, William Pruett stopped at a Mobil self service gas station and car wash on Hillcroft in Houston. Pruett parked his car at the pump nearest the attendant's booth and was filling his car with gasoline when he heard voices behind him. Pruett turned around and noticed two men walking towards the attendant's booth. Pruett heard the attendant say "I don't have the key" several times in a very insistent manner but could hear nothing the two men were saying to the attendant. Pruett then saw, appellant, the shorter of the two men, take a gun, raise it and shoot the attendant. As the men were fleeing the scene, appellant stopped, and he and Pruett looked at each other for a few seconds. Pruett ran the opposite way from appellant. When appellant and his accomplice left the scene, Pruett returned to his car. The attendant then came out of the booth holding his hand across his stomach and said "They shot me. They shot me, but they didn't rob me. Take me to the hospital." On the way to the hospital Pruett stopped a policeman who radioed for an ambulance which ultimately took the attendant to the hospital. The attendant died several days later. At the trial, Pruett testified that he did not hear what appellant and his accomplice said to the attendant. He stated that when the attendant said he did not have the key, his first thought was that the reference was to the key to the restroom.

Dennis Lapinskas, the station manager, arrived at the station about 3:30 on the afternoon of the shooting. He examined the register and determined that no money had been taken. Lapinskas testified that the attendant in question had care, custody and control of the money in the cash register. Lapinskas stated that the service station had a bathroom but that the door to the bathroom could not be locked. The register could be operated only with a key which was found under the register. The key was normally kept in the operating lock of the register.

On November 9, 1981, during voir dire, appellant filed a motion to recuse the presiding judge, Judge William Hatten, pursuant to TEX.REV.CIV.STAT.ANN. art. 200a § 6 (Vernon Supp.1982). The basis of the motion was statements made by Hatten concerning the death penalty on a television talk show called "Houston Weekly". Appellant's contention was that the statements made by Hatten demonstrated a bias against appellant and violated appellants right to due process, a fair trial, and an impartial jury. Hatten overruled appellant's motion to recuse and his request for a hearing before another judge. On November 11, Hatten entered an order referring the appellant's motion to the Presiding Judge of the Second Administrative District for the assignment of another judge to have a hearing on the motion. The hearing was held on November 16. Each of the witnesses testified that in their opinion the views expressed by Hatten on the program were strictly his personal opinions. No one remembered Hatten stating that he would encourage jurors to invoke the death penalty. Hatten merely stated that in order for the death penalty to be an effective deterrent, it should be invoked more often. At the close of the hearing, appellant's motion to recuse was overruled.

At the time the program on which Hatten spoke was aired, three jurors had already been selected. On November 9, appellant filed a motion for additional voir dire of those three jurors. Such motion was granted and on December 14, additional voir dire of the three jurors was allowed. Each juror testified that he had not seen the program or read anything about it.

On December 3, appellant filed a second motion to recuse, or in the alternative, to reopen the hearing on the first motion and to offer a newly found video tape as evidence. Hatten overruled Appellant's motion without referring it to the Presiding Judge. The court allowed copies of the video tape to be introduced into evidence for inclusion in the record on appeal but would not allow it to be played for the record.

Appellant brings ten grounds of error. In the first, he contends "the evidence is insufficient to sustain the conviction for capital murder because the state failed to prove the underlying robbery." Appellant contends that no money was taken, no one heard exactly what key the appellant was referring to and since the attendant stated "They shot me. They shot me, but they didn't rob me" the evidence is insufficient to prove the robbery. We disagree.

" 'In the course of commiting theft' within the robbery statute, means conduct which occurs in an attempt to commit, during commission, or in immediate flight after the attempt or commission of theft... The actual commission of the offense of theft is not a prerequisite of the offense of robbery."

Autry v. State, 626 S.W.2d 758 (Tex.Cr.App.1982). The fact that no property was taken from the gas station did not render the evidence insufficient to prove that the attendant was murdered while appellant was in the course of attempting a robbery. See Autry v. State, supra. Appellant was observed pointing a gun at the attendant with the attendant insisting he did not have the key. The evidence showed that although Pruett initially thought the attendant was referring to the restroom key, the restroom door could not be locked. The evidence also showed that the cash register could be operated only with a key. After the attendant was shot, he ran to Pruett's car and said "They shot me. They shot me, but they didn't rob me." While no one heard appellant or his accomplice actually demand money from the attendant, we conclude that there was sufficient evidence to allow the jury to find that they were acting with intent to obtain control of the money under the attendant's care, custody, and control. Intent to steal may be inferred from actions or conduct. Johnson v. State, 541 S.W.2d 185 (Tex.Cr.App.1976); Banks v. State, 471 S.W.2d 811, 812 (Tex.Cr.App.1971). Appellant's first ground of error is overruled.

In his second and third grounds of error, appellant contends the trial court erred in ruling on appellant's first and second motions to recuse without referring the motions to the Presiding Judge of the Administrative Judicial District. Appellant contends all actions taken by the court after the first motion to recuse was filed were void and appellant's conviction should, therefore, be reversed.

The provisions of TEX.REV.CIV.STAT.ANN. art. 200a § 6 (Vernon Supp.1982) provide that: "A district judge shall request the Presiding Judge to assign a judge of the Administrative District to hear any motions to recuse such district judge from a case pending in his court." However, the filing of a motion to recuse, in itself, does not disqualify the local judge. The statute merely requires that another judge be assigned to determine the merits of the motion. McLeod v. Harris, 582 S.W.2d 772 (Tex.1979). In the instant case, a motion to recuse was filed. The judge initially overruled appellant's first motion to recuse, but later complied with the appellant's request and asked the Presiding Judge of the Administrative District to assign another judge to preside over a hearing on the motion. A judge was assigned, a hearing was held, and the motion was overruled. Therefore, any error committed by the trial court in overruling appellant's first motion was harmless.

On December 3, 1981, appellant filed a second motion to recuse or, in the alternative, to reopen the evidentiary hearing on the original motion so that a video tape of the television program in question could be played for the record. Judge Hatten allowed the video tape to be included in the record for appeal but overruled the motion without requesting the Presiding Judge of the Administrative District to assign a judge to hear the second motion. No new grounds for recusing Judge Hatten were raised in the second motion. We realize the mandatory nature of article 200a § 6. However, we do not believe the legislature intended to create a means by which litigants could stop judicial proceedings at will by filing duplictous motions to recuse. See, Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex.1979); See also, Zima v. State, 553 S.W.2d 378 (Tex.Cr.App.1977). Had new, unlitigated grounds for recusal been raised by the second motion, Judge Hatten could have been obligated to request the Presiding Judge of the Administrative District to appoint a judge to hear the second motion. This was not the situation. Appellant's second and third grounds of error are overruled.

Appellant in his fourth ground of error, contends that the presiding judge at the hearing on the motion to recuse abused his discretion in overruling appellant's first motion to recuse. Article 5, § II, of the Texas Constitution provides in part that no judge may sit in a case "wherein he may be interested...." The interest which disqualifies a judge "is that interest, however small, which rests upon a direct pecuniary or personal interest in the result of a case presented to the judge or court." Cameron v. Greenhill, supra. We have reviewed the evidence and find nothing to indicate that Judge Hatten had any pecuniary or personal interest in the result of appellant's case. The judge merely stated his personal views on the death penalty and its effect as a deterrent. He made no statements which indicated that he believed that appellant should receive the death penalty or that he...