Gaal v. State, No. 2-08-382-CR (Tex. App. 1/28/2010)

Decision Date28 January 2010
Docket NumberNo. 2-08-382-CR.,2-08-382-CR.
PartiesGEORGE GAAL, Appellant, v. THE STATE OF TEXAS, State.
CourtCourt of Appeals of Texas

Appeal from the 367th District Court of Denton County.

Panel: LIVINGSTON, GARDNER, and WALKER, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

Appellant George Gaal appeals his felony conviction for driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003), § 49.09(b)(2) (Vernon Supp. 2009). In one of his four points, he contends that the trial judge should have been recused. We reverse and remand for a new trial.

Background Facts

Near midnight on September 23, 2007, Gayle Cook was riding in a pickup with her husband on Milam Road toward Interstate 35 when she saw a truck stopped in the middle of the road and saw Gaal on the ground in front of the truck. It appeared to Cook that Gaal's truck had hit a guardrail and was damaged. Cook approached Gaal to ask him if he was okay, but Gaal was disoriented and did not appropriately answer Cook's questions. Cook and her husband went to a truck stop that was close by and called 911 on Cook's cellular phone, but while they were doing so, Gaal began to drive away.

Cook and her husband followed Gaal, who was driving slowly and was swerving. Gaal eventually drove into a ditch, but then he drove back onto the road at a very fast speed before eventually pulling into a parking lot and stopping his truck. Cook had continued her contact with 911, and a Denton police officer eventually arrived at the parking lot and approached Gaal's truck. The officer noticed that Gaal had slurred speech, that he smelled like alcohol, and that he had bloodshot eyes. She also saw hydrocodone in Gaal's truck. Another Denton police officer arrived at the parking lot and asked Gaal to take a standardized field sobriety test and two nonstandardized tests, all of which he failed. The officer arrested Gaal and found an empty bottle of Crown Royal and two empty beer bottles in his truck.

In December 2007, a Denton County grand jury indicted Gaal for DWI; the indictment alleged that Gaal had two prior DWI convictions. The parties filed various pretrial documents; for instance, Gaal filed a motion to recuse the trial judge based on a comment that he made about Gaal's potential plea bargain.1 The motion to recuse was denied, and Gaal's trial began in August 2008. Gaal initially pled not guilty and filed his application for community supervision. After the jury was selected, Gaal pled guilty.

The parties presented evidence concerning Gaal's punishment; Gaal testified and asked the jury to place him on community supervision. After the parties presented closing arguments, the jury assessed Gaal's punishment at ten years' confinement. Gaal filed a motion for new trial, but the trial court denied the motion, and Gaal filed his notice of appeal.

Recusal

In his fourth point, Gaal contends that the trial judge should have been recused. We agree.

Standard of review and applicable law

We apply the rules of civil procedure to review the denial of a motion to recuse in a criminal case. De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (orig. proceeding); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993); see Kniatt v. State, 239 S.W.3d 910, 912-13 (Tex. App.-Waco 2007, no pet.) (op. on reh'g). In doing so, we review the denial of a motion to recuse for an abuse of discretion. Tex. R. Civ. P. 18a(f); Wesbrook v. State, 29 S.W.3d 103, 120 (Tex. Crim. App. 2000) (plurality op.), cert. denied, 534 U.S. 944 (2001); Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 918 (1993).

To determine whether the court hearing the motion to recuse abused its discretion, we must determine whether it acted without any guiding rules or principles.Abdygapparova v. State, 243 S.W.3d 191, 197-98 (Tex. App.-San Antonio 2007, pet. ref'd); Mosley v. State, 141 S.W.3d 816, 834 (Tex. App.-Texarkana 2004, pet. ref'd) (adding that the "mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge does not demonstrate [an abuse of discretion]"). In other words, "an appellate court should not reverse a trial judge whose ruling on the motion was within the zone of reasonable disagreement." Kemp, 846 S.W.2d at 306. In reviewing the denial of the motion, we must consider the totality of the evidence elicited at the recusal hearing. Id.

A judge shall be recused if, among other reasons, the judge's "impartiality might reasonably be questioned" or the judge "has a personal bias or prejudice concerning the subject matter or a party." Tex. R. Civ. P. 18b(2). As the court of criminal appeals has explained,

A trial judge ruling on a motion alleging bias as a ground for disqualification must decide whether the movant has provided facts sufficient to establish that a reasonable man, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial judge. Bias may be a ground for disqualification only when it is shown to be of such nature, and to such extent, as to deny the defendant due process of law.

Kemp, 846 S.W.2d at 305 (citations omitted); see Wesbrook, 29 S.W.3d at 121; Rosas v. State, 76 S.W.3d 771, 775 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (applying the reasonable person/due process standard).

Analysis

According to the State's attorney's statements during the hearing on Gaal's motion to recuse, in June 2008, Gaal's original trial counsel had negotiated a plea bargain of two years' confinement with the State. Gaal arrived at a pretrial hearing on June 30 with new counsel even though the State and the trial judge expected Gaal to plead guilty under the plea bargain at the hearing. Gaal eventually rejected the plea bargain and chose to not plead guilty, and the State rescinded its plea bargain offer.2 At that point, the trial judge said, "All right. We're supposed to have a plea here today. It appears that Mr. Gaal does not want to plea. For the record, I will not accept any plea bargain in this matter, unless it's for the maximum term of ten years."

Gaal filed his motion to recuse on July 3. Gaal's recusal motion alleged that the trial judge was biased or prejudiced against him. It also asserted that the trial judge had denied Gaal due process because the "admonition by the Court . . . clearly place[d] the Court in an adverse position to [Gaal]." On August 1, the judge assigned to hear the recusal motion held a hearing in which Gaal's counsel argued in part, "I don't believe that Mr. Gaal can receive due process if his presiding judge will not consider the entire range of punishment . . . . It removes [Gaal] from seeking to the court relief from punishment, and leaves [him] one alternative to go to the jury." The recusal judge denied Gaal's motion.

Due process requires a neutral and detached trial court.See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Jaenicke v. State, 109 S.W.3d 793, 796 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (op. on reh'g). Thus, a trial court denies a defendant due process when it arbitrarily, without any evidence before it, refuses to consider a portion of the permissible range of punishment. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005); McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983), overruled on other grounds by De Leon, 127 S.W.3d at 5-6;Cole v. State, 931 S.W.2d 578, 579-80 (Tex. App.-Dallas 1995, pet. ref'd). For example, the Houston (First District) Court of Appeals, relying on McClenan, held that a trial judge should have been recused when, in response to questioning regarding whether the judge would accept a plea bargain of deferred adjudication, the judge said, "No, and if the jury gives her probation, I'll give her jail time."Norton v. State, 755 S.W.2d 522, 523-24 (Tex. App.-Houston [1st Dist.] 1988) (italics omitted), pet. ref'd, 771 S.W.2d 560 (Tex. Crim. App. 1989). Similarly, the Dallas Court of Appeals held that a trial court denied the defendant due process by failing to consider the entire punishment range when it told the defendant at a deferred adjudication hearing that it would impose a twenty-year sentence if probation was revoked and then imposed that sentence once probation was revoked. Jefferson v. State, 803 S.W.2d 470, 471-73 (Tex. App.-Dallas 1991, pet. ref'd).

Like the decisions in Norton and Jefferson, we conclude that under the facts of this case, the trial judge's comment that he would only consider a plea bargain for the maximum punishment forecasted his inability to consider the full punishment range and denied Gaal due process; therefore, we hold that the recusal judge abused his discretion by denying Gall's motion to recuse. In so holding, we recognize that a trial judge is not required to accept any particular plea bargain or even to allow parties to engage in the plea bargain process.State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 8-9 (Tex. Crim. App. 1983) (orig. proceeding);Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim. App. [Panel Op.] 1978). Thus, we certainly do not hold that a trial judge should be recused merely for rejecting a particular plea bargain or limiting the plea bargain process.

However, we conclude that the trial judge in the limited circumstances of this case exceeded his general authority to reject plea bargains. Here, the record indicates that the trial judge had allowed the plea bargain process to proceed and had initially considered approving a plea bargain for the minimum term of confinement but then reacted to Gaal's decision not to plead guilty by arbitrarily foreclosing the possibility of any plea bargain other than one for the maximum punishment, even though there was no particular plea bargain presented for the judge's consideration at that time.3 This was improper because "[t]he only proper role...

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